CopyCited 5 times | Published | District Court, S.D. Florida | 1984 U.S. Dist. LEXIS 19526
...ealment of the facts surrounding the project stymied his efforts. [10] Accordingly, defendants' motions to dismiss because plaintiff's section 12(1) claim is barred by the statute of limitations is denied. IV. Private Right of Action Under Fla.Stat. § 517.03(1) In count 7, plaintiff seeks to bring a private cause of action against FFS for allegedly failing to comply with Rule 3E-600.14(6) [11] as promulgated by the Florida Department of Banking and Finance pursuant to section 517.03(1), Fla.Stat.Ann....
...Green,
433 So.2d 1248, 1249, 1250 (Fla. 3d DCA 1983) (Pearson, J., concurring). A review of the legislative history and overall statutory scheme of the Florida Securities Act, Fla.Stat.Ann. §
517.011 et seq. (West Supp.1983) ("Act"), militates against implying a cause of action under section
517.03(1) or Rule 3E-600.14(6)....
...t." Rudd v. State,
386 So.2d 1216, 1218 (Fla. 5th DCA 1980); accord Data Lease Financial Corp. v. Barad,
291 So.2d 608, 612 (Fla.1974). Pursuant to that end, the Legislature expressly vested the Department of Banking and Finance with authority under section
517.03(1) to bring an action in the name and on *579 behalf of the State to enjoin violations of the Act and the rules promulgated by the Department. The Summary and Analysis of Chapter 517 provided by the House Committee on Commerce explains. [Section
517.03] [a]mends the present language to clarify the department's rulemaking authority....
...pretations may raise this reliance as an affirmative defense in a subsequent action. Staff of House Comm. on Commerce, Staff Analysis and Summary of Chapter 517, at 2 (Apr. 16, 1979). The Commerce Committee's Staff Summary and Analysis confirms that section 517.03(1) is not to be used as a litigous tool by purchasers and sellers....
...While reliance on the Department's rules can be used as an affirmative defense, the Committee stopped short of sanctioning a private cause of action for violations of the section or the Department's rules. Not only has the Legislature not elected to provide a private remedy under section 517.03(1), but such relief would be superfluous and inefficient given the Department's broad enforcement powers and the already-existing extensive regulation of the securities markets....
...; and section
517.221 authorizes the Department to issue cease and desist orders. The import of these comprehensive enforcement powers is that the Department, and not a private investor, is the "primary beneficiary" of the Legislature's enactment of section
517.03(1)....
...147, 150-51 (S.D.Fla.1981) (quoting Noe v. Metropolitan Atlanta Rapid Transit Authority,
644 F.2d 434, 437 (5th Cir.1981)). The specific remedial provisions of the Florida Securities Act also counsel against the implication of a private cause of action under section
517.03(1)....
...[15] Section
517.211 also provides purchasers and sellers covered by the Act with a cause of action for rescission or damages. [16] Given *580 the particularity of these remedies, it follows that the Legislature would have expressly permitted a private action under section
517.03(1) if it so desired....
...emedies available to private parties under Chapter 517, unless the Legislature expressly provides otherwise. In short, the legislative framework and specific provisions of Chapter 517 do not suggest that a private cause of action can be implied from section 517.03(1)....
...See Sandegren v. State,
397 So.2d 657, 659 (Fla.1981); Florida Welding and Erection Service, Inc. v. American Mutual Insurance Co.,
285 So.2d 386, 388 (Fla.1973). The Legislature could not have meant for the Department to imply a private cause of action under section
517.03(1), because the implication of such a right is a legislative or judicial prerogative, as distinguished from an administrative action. Plaintiff suggests that the language in section
517.03(1) characterizing the Department's *581 rulemaking power as "nonexclusive" supports his position that this Court also can imply private remedies under that section....
...OSHA,
708 F.2d 570, 576 (11th Cir.1983) ("A court's determination of whether a right of action is presented involves a prudential rule of self-restraint"). This Court heeds the wisdom of other tribunals and similarly refuses to imply a right of action under Fla.Stat. §
517.03(1). The statutory history and framework of Chapter 517 in general, and the language of section
517.03(1) in particular, make it "highly improbable that [the Legislature] absentmindedly forgot to mention an intended private action." Transamerica, 444 U.S....
...The procedures shall include the designation by name or title of those persons delegated supervisory responsibility in at least the areas of sales, financial operations, and compliance. A complete set of such procedures and systems shall be kept in all branch offices registered with this Department. [12] Section 517.03(1) reads: (1) The Department of Banking and Finance shall administer and provide for the enforcement of all the provisions of this chapter....
...ules and forms governing reports. The department shall also have the nonexclusive power to define by rule any term, whether or not used in this chapter, insofar as the definition is not inconsistent with the provisions of this chapter. Fla.Stat.Ann. § 517.03(1) (West Supp.1983)....
