Antony Lee Turbeville v. Department of Financial Services

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-221
_____________________________
ANTONY LEE TURBEVILLE,
Appellant,
v.
DEPARTMENT OF FINANCIAL
SERVICES,
Appellee.
_____________________________
On appeal from the Department of Financial Services.
Robert C. Kneip, Chief of Staff.
May 3, 2018
B.L. THOMAS, C.J.
Appellant 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.
Facts
Appellant entered the securities industry in 1987 and
registered with several FINRA 1 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
investors.
On 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 any capacity.
Appellant 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.
1 In July 2007, in connection with the consolidation of its
regulatory functions of the New York Stock Exchange, the
National Association of Securities Dealers (NASD) changed its
name to the Financial Industry Regulatory Authority (FINRA).
Eppinger v. Sealy, 25 So. 3d 69, 72 n.1 (Fla. 5th DCA 2009).
2
On 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.
Analysis
1. Is the language of section 626.621(13), Florida Statutes
(2015), or Florida Administrative Code Rule 69B-231.090(13)
ambiguous?
We review issues of statutory interpretation de novo.
Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So. 2d 417, 420 (Fla. 1st
DCA 2004).
Administrative 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
3
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)).
Section 626.621, Florida Statutes, as it read at all times
pertinent here, 2 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.
2 In 2017, the legislature amended section 626.621, Florida
Statutes. § 626.621, Fla. Stat. (2015), amended by ch. 2017-175,
§ 27, at 23-24, Laws of Fla. The pre-2017 language of section
626.621(13) still exists, but now as section 626.621(12). All
references herein to section 626.621(13) refer to the statute as it
read in 2015, when FINRA affirmed the sanctions against
Appellant.
4
Florida Administrative Code Rule 69B-231.090 describes
specific penalties for violations of section 626.621, Florida
Statutes:
If it is found that the licensee has violated any of the
following subsections of Section 626.621, F.S., for which
. . . revocation of license(s) . . . is discretionary, the
following stated penalty shall apply:
....
(13) Section 626.621(13), F.S. –
(a) The highest identical penalty to the penalty
imposed by the . . . national securities . . .
association or, if not available, the highest
substantially similar penalty to the penalty
imposed.
1. A revocation, removal, lifetime prohibition,
lifetime bar or lifetime ban, or the equivalent, or
any suspension with a duration greater than
24 months, shall result in revocation; and
2. A suspension with a duration of less than
24 months, shall result in a suspension of equal
length.
Appellant argues that the statute and rule are ambiguous,
because neither provide guidance for what date should be used to
compute penalties under section 626.621(13), Florida Statutes, or
more specifically, whether the Extended Hearing Panel’s or the
National Adjudicatory Council’s decisions constitute “final agency
action” as described in the statute. Therefore, Appellant argues,
the statute must be construed in favor of Appellant, which would
define the Extended Hearing Panel’s decision on May 31, 2012, as
the final agency action and ultimately result in an impermissible
ex post facto application of Florida Administrative Code Rule
69B-231.090(13), because Appellant’s violation occurred before
the rule was promulgated on March 24, 2014.
5
Interpretation of FINRA’s rules is exclusively a federal
question. See Turbeville v. Fin. Indus. Regulatory Auth., 2016
WL 501982 (M.D. Fla. Feb. 9, 2016) (holding removal to federal
court was proper where Tuberville’s pleading required court to
interpret FINRA’s rules). Federal circuit courts have held that
“[t]he NAC’s decision (or the Hearing Panel’s decision if there
was no appeal) is FINRA’s final action unless FINRA’s Board of
Governors calls for review.” Scottsdale Capital Advisors Corp. v.
Fin. Indus. Regulatory Auth., Inc., 844 F.3d 414, 418 (4th Cir.
2016). Further, “[a]n appeal to the National Adjudicatory
Council from a decision issued pursuant to Rule 9268 or
Rule 9269 shall operate as a stay of that decision until the
National Adjudicatory Council issues a decision pursuant to
Rule 9349 . . . .” FINRA Rule 9311(b).
Thus, the Extended Hearing Panel’s decision is final unless
appealed to the National Adjudicatory Council. If appealed to the
Council, the decision is stayed.
Appellant argues that section 626.621(13), Florida Statutes,
is ambiguous, because it does not specify whether the decision of
the Extended Hearing Panel or of the National Adjudicatory
Council should be used for penalty calculation. This argument
incorrectly implies that two parallel decisions co-exist and that
the Florida Statutes must differentiate them. On the contrary,
as stated above, the Extended Hearing Panel’s decision only
becomes effective if it is not appealed; if appealed, it is stayed
until the National Adjudicatory Council makes a decision, which
then becomes FINRA’s final action. At no time during the
procedure do two countervailing decisions co-exist
simultaneously; thus, there is no need for section 626.621(13) to
specify which decision should be relied upon.
Appellant also argues that section 626.621(13), Florida
Statutes, is ambiguous, because it applies to “any decision . . . by
any . . . national securities . . . association.” (Emphasis added.)
But this court has found that the Florida Office of Financial
Regulation was permitted to apply a statute very similar to the
one at issue here, to deny registration to an applicant who was
found in a FINRA arbitration decision to have violated securities
laws.
6
In Wojnowski v. State, Office of Financial Regulation, this
court analyzed section 517.161(1)(m), Florida Statutes (2011),
which permitted the Office to deny registration to any applicant
who “‘[h]as been the subject of any decision . . . by any . . .
national securities . . . association, involving a violation of any
federal or state securities or commodities law . . . .’” 98 So. 3d
189, 191 (Fla. 1st DCA 2012) (quoting § 517.161(1)(m), Fla. Stat.
(2011) (emphasis added)). This court found that the State was
permitted to deny the applicant’s registration application,
because, after a FINRA arbitration decision, the applicant was
clearly “subject to” a decision by FINRA, defined as a “national
securities association.” And because FINRA made a finding that
the applicant had violated state securities laws, the State was
permitted to rely on the FINRA award to deny the applicant’s
registration application. Id.
Here, the language of section 626.621(13), Florida Statutes,
mirrors almost verbatim the language of section 517.161(1)(m),
Florida Statutes, analyzed in Wojnowski. Using a virtually
identical statute as its authority to do so, the Department
revoked Appellant’s license on the basis of FINRA’s finding that
Appellant violated securities laws. In Wojnowski, this court
noted that the language in section 517.161(1)(m), Florida
Statutes, broadly allowed the State to deny registration, if the
applicant had been “the subject of any decision” by an association
such as FINRA. 98 So. 3d at 191 (emphasis in original). This
court found the phrase “any decision” to mean precisely that: any
decision by an association such as FINRA. Id. The phrase “any
decision” in section 626.621(13), Florida Statutes, is not
ambiguous; it means that the agency is authorized to revoke a
license, if the licensee has been the subject to any decision by a
national securities association such as FINRA. See also Wright v.
City of Miami Gardens, 200 So. 3d 765, 771 (Fla. 2016) (holding
that a statute allowing mayoral candidate to be disqualified if a
bank returned his qualifying fee check for “any reason” was
unambiguous, as “any reason” included reasons which were not
the fault of the candidate, but finding statute unconstitutional).
Appellant additionally argues that section 626.621(13),
Florida Statutes, is ambiguous, because both a licensee and
FINRA are allowed to appeal the decision of the Extended
7
Hearing Panel. Again, section 626.621(13), Florida Statutes,
allows the Department to revoke a license, if the licensee has
been the subject of “any decision” by an association such as
FINRA. The fact that either FINRA or a member may appeal a
decision by the Extended Hearing Panel does not create
ambiguity; the final decision from either appeal would fall under
“any decision,” and the Department may revoke a license based
on either. See Wojnowski, 98 So. 3d at 191; Wright, 200 So. 3d at
771.
2. Does the use of Florida Administrative Code Rule 69B-
231.090(13) constitute an ex post facto application?
A law violates the prohibition against ex post facto laws if
two conditions are met: (a) it is retrospective in effect, and (b) it
alters the definition of criminal conduct or increases the penalty
by which a crime or civil infraction is punishable. Art. I, § 10,
Fla. Const; Gwong v. Singeltary, 683 So. 2d 109, 112 (Fla. 1996).
The ex post facto prohibition applies to criminal or civil penal
statutes. Lescher v. Fla. Dep’t of Highway Safety & Motor
Vehicles, 985 So. 2d 1078, 1081 (Fla. 2008). Statutes providing
for the revocation or suspension of a license to practice are
deemed penal in nature. Elmariah, 574 So. 2d at 165.
Section 626.621(13), Florida Statutes, authorizes the
Department to revoke a licensee’s license, if the licensee has had
his or her authority to conduct business subjected to any decision
of a national securities association. FINRA is such an
association. Wojnowski, 98 So. 3d at 191. Appellant argues that
the decision of the Extended Hearing Panel operated as FINRA’s
final action, and he therefore was subject to FINRA’s decision,
and by extension violated section 626.621(13), Florida Statutes,
on May 31, 2012, twenty-two months before the promulgation of
Florida Administrative Code Rule 69B-231.090(13). But,
Appellant argues that because he committed the violation before
promulgation of the rule authorizing his punishment, the
Department’s revocation of his license is an impermissible ex post
facto application.
The Department argues that FINRA’s final action occurred
on April 15, 2016, when the National Adjudicatory Council issued
its decision; therefore, Appellant violated section 626.621(13),
8
Florida Statutes, after the promulgation of Florida
Administrative Code Rule 69B-231.090(13). Thus, Appellee
argues, the license revocation was not an ex post facto
application.
The applicable FINRA rules state:
9311. Appeal By Any Party; Cross-Appeal
(a) Time to File Notice of Appeal
A Respondent or the Department of Enforcement or
the Department of Market Regulation may file a
written notice of appeal within 25 days after service
of a decision issued pursuant to Rule 9268 or Rule
9269.
(b) Effect
An appeal to the National Adjudicatory Council
from a decision issued pursuant to Rule 9268 or
Rule 9269 shall operate as a stay of that decision
until the National Adjudicatory Council issues a
decision pursuant to Rule 9349[.]
9349. National Adjudicatory Council Formal
Consideration; Decision.
(a) Decision of National Adjudicatory Council,
Including Remand
In an appeal or review of a disciplinary proceeding
. . . the National Adjudicatory Council, after
considering all matters presented in the appeal or
review and the written recommended decision of the
Subcommittee or, if applicable, the Extended
Proceeding Committee, may affirm, dismiss, modify,
or reverse the decision of the Hearing Panel, or if
applicable, Extended Hearing Panel[.]
9
(Emphasis added.) In Scottsdale, the United States Court of
Appeals for the Fourth Circuit interpreted the FINRA rules to
state: “The NAC’s decision (or the Hearing Panel’s decision if
there was no appeal) is FINRA’s final action unless FINRA’s
Board of Governors calls for review.” 844 F.3d at 418.
Therefore, the appeal that Appellant initiated stayed the
decision of the Extended Hearing Panel rendered in 2012,
making it non-final by definition under FINRA Rule 9311(b). See
Century Sur. Co v. de Moraes, 998 So. 2d 662, 663 n.1 (Fla. 4th
DCA 2009) (“[a] stay . . . essentially postpones one proceeding
until a contingency occurs”).
Appellant cites Miami-Dade Water and Sewer Authority v.
Metropolitan Dade County for the proposition that an order,
judgment or decree is final when the order appealed “constitutes
an end to the judicial labor in the trial court, and nothing further
remains to be done to terminate the dispute between the parties
directly affected.” 469 So. 2d 813, 814 (Fla. 3d DCA 1985).
Appellant thus argues that the Extended Hearing Panel
functions as a trial court, and that after its decision, nothing
further remained to be done to terminate the dispute between the
parties. Appellant acknowledges that the National Adjudicatory
Council may review and reverse or modify the Extended Hearing
Panel’s decision, but he argues that because the Extended
Hearing Panel functions as a trial court, its decision is final and
comes after the work of the Extended Hearing Panel is
completed.
The decision in Miami-Dade Water and Sewer described the
rule for finality of a trial court’s decision when determining
whether the judicial labor was terminated and therefore subject
to appellate review. 469 So. 2d at 814. Comparing the Extended
Hearing Panel to a trial court and the National Adjudicatory
Council to an appellate court is a false analogy. Significant here,
parties to a National Adjudicatory Council hearing, with leave of
the Council, may submit additional evidence. FINRA Rule
9346(b). Likewise, a party may introduce rebuttal evidence in
response to proposed additional evidence at this stage. FINRA
Rule 9346(c). Additionally, a decision by the National
Adjudicatory Council is required to contain “a statement setting
10
or the findings of fact with respect to any act or practice the
Respondent was alleged to have committed or omitted.” FINRA
Rule 9349(b)(3). Thus, unlike an appellate court reviewing a
final order by a trial court, the National Adjudicatory Council
may hear new evidence and make findings of fact. It is clear that
the “judicial labor of the trial court” is therefore not complete
when a member appeals a decision from the Extended Hearing
Panel to the National Adjudicatory Council. Miami-Dade Water
& Sewer, 469 So. 2d at 814. Further, Appellant’s trial court
analogy is inappropriate because, after a criminal trial, “a
conviction on appeal at sentencing is not yet final.” Baxter v.
State, 617 So. 2d 338, 340 (Fla. 1st DCA 1993) (emphasis in
original). Here, as after a trial, the lower tribunal’s decision is
not final for sentencing purposes during the pendency of appeal.
Appellant also argues that the use of “any decision” is
impermissible, because it would allow the Department to use the
decision of either the Extended Hearing Panel or the National
Adjudicatory Council to revoke his license, which could result in
an ex post facto application due to the possibility of change in the
Department rule. However, the Extended Hearing Panel’s
decision was stayed when Appellant initiated his appeal to the
National Adjudicatory Council. Scottsdale, 844 F.3d at 418. A
“stay” is the “postponement or halting of a proceeding, judgment,
or the like.” Black’s Law Dictionary (10th ed. 2014); de Morlaes,
998 So. 2d at 663. Therefore, a decision by the Extended Hearing
Panel is postponed, halted, or suspended when an appeal is
initiated. Such a suspended judgment therefore would not fall
under the “any decision” definition in section 626.621(13), Florida
Statutes, because it is stayed until “a contingency occurs”—in
this case, the resolution by the National Adjudicatory Council.
Id.
Therefore, because FINRA’s action was not final until
April 16, 2015, when it was resolved by the National
Adjudicatory Council, the Department’s application of Florida
Administrative Code Rule 69B-231.090(13) (adopted March 24,
2014) to Appellant’s violation of section 626.621(13), Florida
Statutes, was not an ex post facto application, as the violation
occurred after the promulgation of the rule, based on the
Council’s affirmance of the Extended Hearing Panel’s decision.
11
3. Does the use of a FINRA decision in a license-revocation
proceeding constitute a violation of the right to remain silent?
“Because license revocation or suspension proceedings are
penal in nature, the fifth amendment right to remain silent
applies.” McDonald v. Dep’t of Prof’l Regulation, 582 So. 2d 660,
662 n.2 (Fla. 1st DCA 1991). Appellant argues that even though
section 626.621(13), Florida Statutes, does not expressly subject
him to discipline for refusal to testify, it allows the discipline
indirectly, thus violating the Fifth Amendment to the United
States Constitution and Article I, section 9 of the Florida
Constitution.
FINRA Rule 8210 requires members to submit sworn
testimony in response to FINRA inquiries, and a failure to
respond may result in sanctions. Appellant argues that because
section 626.621(13), Florida Statutes, allows the Department to
revoke a licensee’s license if he or she has been subject to a
decision by FINRA, a licensee can indirectly have his or her
license revoked by failing to respond to a FINRA Rule 8210
request. Because the Fifth Amendment applies to license-
revocation proceedings, Appellant argues that the Department
cannot revoke a license by relying on the decision of an
association that does not afford its members the right to remain
silent.
Appellant cites State ex rel. Vining v. Florida Real Estate
Commission, 281 So. 2d 487 (Fla. 1973), as analogous to the
present case. In Vining, the Florida Supreme Court analyzed a
statute that required licensed realtors to respond by means of a
sworn answer to charges made by the Real Estate Commission.
281 So. 2d at 491. The penalty for failure to respond to such
charges was the entry of a default judgment against the
defendant, which could have resulted in suspension or revocation
of the realtor’s license. Id. The supreme court held that there
was “basic constitutional infirmity” in a statute requiring a
response under the threat of license revocation or suspension,
which amounted to compelling the defendant to be a witness
12
against himself within the meaning of the Fifth Amendment to
the United States Constitution and Article I, section 9 of the
Florida Constitution. Id. at 491-92. Vining is distinguishable,
however, because there, testimony was compelled by state action.
By contrast, section 626.621(13), Florida Statutes, does not
subject licensees or applicants to discipline for refusal to testify,
but allows the Department to revoke a license if the licensee’s
authority to conduct business was subject to a decision by a non-
governmental national securities agency.
Because interpretation of FINRA rules is a federal question,
Florida courts have not discussed an agency’s authority to
discipline a licensee as a result of the licensee’s refusal to testify
before FINRA. The United States Court of Appeals for the
Second Circuit has determined that “testimony in an NASD
proceeding may entail exposure to criminal liability, but that in
itself is not enough to establish the requisite governmental
nexus” to trigger Fifth Amendment protection. D.L. Cromwell
Inv., Inc. v. NASD Regulation, Inc., 279 F.3d 155, 162 (2d Cir.
2002) (quoting Jackson Metro. Edison Co., 419 U.S. 345, 351
(1974)). Such a nexus exists where (1) the state has exercised
coercive power over a private decision, or where (2) the private
entity has exercised powers that are typically exclusive to the
state. Cromwell, 279 F.3d at 161 (citing Blum v. Yaretsky, 457
U.S. 991, 1004 (1982)). A federal district court in New York
similarly held that investigations by FINRA do not trigger the
Fifth Amendment right against self-incrimination, even though
the testimony may later subject a defendant to civil and criminal
enforcement proceedings by the government:
It is beyond cavil that the NASD is not a government
agency; it is a private, not-for-profit corporation. It was
not created by statute. None of its directors or
executives are government officials or appointees. It
receives no government funding, and not being a part of
the government or owing its existence to the
government, its actions cannot be imputed to the
government nor can its agents bind the government. It
is also beyond cavil that questions put to the defendants
by the NASD in carrying out its own legitimate
investigative purposes do not activate the privilege
13
against self-incrimination nor would the Fourth
Amendment place any limitation upon the NASD in
pursuing its regulatory functions. Nor would a violation
of a rule of the NASD which would subject the
defendants to sanctions by that Association, and even to
civil and criminal enforcement proceedings by the
government, suffice to create an agency relationship
between the NASD and the government.
United States v. Shvarts, 90 F. Supp. 2d 219, 222 (E.D.N.Y. 2000)
(citations omitted; abrogated on other grounds); see also
Cromwell, 279 F.3d at 162 (2d Cir. 2002) (holding that, because
there is not a “sufficiently close nexus” to make NASD actions
“fairly attributable” to the government, testimony in an NASD
proceeding does not trigger Fifth Amendment protection);
Waddell & Reed Fin., Inc. v. Torchmark Corp., 223 F.R.D 566,
622 (D. Kan. 2004) (holding communication with NASD in
connection with investigation could be used to subject members
to civil liability).
We agree with these courts that, because testimony to
FINRA is not compelled by state action, the privilege against self-
incrimination in the Fifth Amendment to the United States
Constitution and Article I, section 9 of the Florida Constitution is
not activated. Therefore, the Department’s reliance on FINRA’s
decision in punishing Appellant under Florida Administrative
Code Rule 69B-231.090(13), pursuant to section 626.621(13),
Florida Statutes, is not unconstitutional.
Conclusion
FINRA rules and federal court rulings state that if the
Extended Hearing Panel’s decision is appealed, the decision by
the National Adjudicatory Council is FINRA’s final action. Thus,
the language of section 626.621(13), Florida Statutes, is not
ambiguous, and the Department’s application of the statute and
Florida Administrative Code Rule 69B-231.090(13) is not an
ex post facto application. Additionally, because testimony to
FINRA is not compelled by State action, the use of testimony in
FINRA license-revocation proceedings does not violate the right
to remain silent as found in the Fifth Amendment to the United
14
States Constitution and Article I, section 9 of the Florida
Constitution. We therefore affirm the Department’s final order.
AFFIRMED.
MAKAR and WINOKUR, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
John A. Richert of Richert Quarles P.A., Clearwater, for
Appellant.
Gregory D. Venz, Deputy General Counsel, Marshawn Michael
Griffin, Assistant General Counsel, Department of Financial
Services, Tallahassee, for Appellee.
15