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IN THE MATTER OF: IARD No. 174937 * * * * * * * * * * * * * * * * * * |
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AND DOCKET NO. NDCD-16-8295-S |
I. PRELIMINARY STATEMENT
WHEREAS, the Banking Commissioner (“Commissioner”) is charged with the administration of Chapter 672a of the General Statutes of Connecticut, the Connecticut Uniform Securities Act (“Act”), and Sections 36b-31-2 to 36b-31-33, inclusive, of the Regulations of Connecticut State Agencies (“Regulations”) promulgated under the Act;
WHEREAS, on February 11, 2015, Harbor Vista Wealth Management, LLC (“Harbor Vista”) applied for registration as an investment adviser in Connecticut pursuant to Sections 36b-7 and 36b-32 of the Act by electronically filing a Form ADV (Uniform Application for Investment Adviser Registration) (“Form ADV”) dated February 10, 2015 through the Investment Adviser Registration Depository (“IARD”) system;
WHEREAS, Robert Neil Tricarico (CRD No. 1500863) (“Tricarico”) is an individual whose address last known to the Commissioner is 11 Cloverly Circle, Norwalk, Connecticut 06855. Tricarico has been associated with Harbor Vista, albeit not in a registered capacity, since at least April 1, 2015;
WHEREAS, on February 19, 2015, Harbor Vista filed an Amended Form ADV through the IARD system;
WHEREAS, on February 24, 2015, five days after Harbor Vista filed its Amended Form ADV, FINRA suspended Tricarico in all capacities pursuant to Article VI, Section 3 of FINRA’s Bylaws and FINRA Rule 9554 for failing to comply with an arbitration award or settlement agreement or to satisfactorily respond to a FINRA request to provide information concerning the status of compliance (Case No. 10 00920);
WHEREAS, at no time did Harbor Vista file a Form ADV amendment reflecting the FINRA suspension of the firm’s advisory affiliate, Tricarico;
WHEREAS, on January 26, 2015, Tricarico had executed a Form U-4 (Uniform Application for Securities Industry Registration or Transfer) to become registered as an investment adviser agent of Harbor Vista pursuant to Sections 36b-7 and 36b-32 of the Act;
WHEREAS, on April 9, 2015, following the FINRA suspension of Tricarico, Harbor Vista, through Guy-Max Dolphin, counter-executed the Form U-4, and, in so doing, attested that “I have taken appropriate steps to verify the accuracy and completeness of the information contained in and with this application.” The Form U-4 filed with the Commissioner on April 9, 2015 to register Tricarico as an investment adviser agent of Harbor Vista in Connecticut made no mention of the FINRA suspension and was not subsequently amended to include the FINRA sanction;
WHEREAS, Harbor Vista specifically identified Tricarico as an advisory affiliate of Harbor Vista on the firm’s Form ADV;
WHEREAS, item 11(E) of Part 1A of Form ADV asked “Has any self-regulatory organization . . . ever: . . . (2) found you or any advisory affiliate to have been involved in a violation of its rules (other than a violation designated as a "minor rule violation" under a plan approved by the SEC)? . . . [or] (4) disciplined you or any advisory affiliate by expelling or suspending you or the advisory affiliate from membership, barring or suspending you or the advisory affiliate from association with other members, or otherwise restricting your or the advisory affiliate’s activities?” (Emphasis supplied.)
WHEREAS, Harbor Vista answered “no” to Item 11(E) of Part 1A of Form ADV;
WHEREAS, Harbor Vista electronically signed the Form ADV on February 9, 2015. In executing the Form ADV, Harbor Vista represented, through its compliance officer, that “I, the undersigned, sign this Form ADV on behalf of, and with the authority of, the investment adviser. The investment adviser and I both certify, under penalty of perjury under the laws of the United States of America, that the information and statements made in this ADV, including exhibits and any other information submitted, are true and correct . . . . .” (Emphasis supplied.)
WHEREAS, on April 30, 2015, twenty-one days after Harbor Vista executed the Form U-4 to register Tricarico as an investment adviser agent in Connecticut, Tricarico entered into an Acceptance, Waiver and Consent (“AWC”) with FINRA (Case No. 2014043719001);
WHEREAS, at no time did Harbor Vista amend its Form ADV to reflect the February 24, 2015 suspension and the April 30, 2015 bar imposed by FINRA against the firm’s advisory affiliate Tricarico;
WHEREAS, the Commissioner, through the Securities and Business Investments Division (“Division”) of the Department of Banking, conducted an investigation of Harbor Vista pursuant to Sections 36b-8 and 36b-26 of the Act (“Investigation”);
WHEREAS, on April 22, 2016, based on the Investigation, the Commissioner, acting pursuant to Sections 36b-15(a), 36b-27(a) and 36b-27(d) of the Act, issued a Notice of Intent to Deny Registration as an Investment Adviser, Order Denying Withdrawal of Registration as an Investment Adviser, Order to Cease and Desist, Notice of Intent to Fine and Notice of Right to Hearing against Harbor Vista (collectively “Notice”), which Notice is incorporated by reference herein;
WHEREAS, on April 22, 2016, the Notice was sent by certified mail, return receipt requested, to Harbor Vista;
WHEREAS, on April 26, 2016, Harbor Vista received the Notice;
WHEREAS, Harbor Vista has failed to request a hearing on the allegations set forth in the Notice within fourteen (14) days of its receipt;
WHEREAS, on June 10, 2016, a Certification was issued rendering the Order to Cease and Desist permanent as of May 11, 2016, which Certification is incorporated by reference herein;
WHEREAS, Section 36a-1-31(a) of the Regulations of Connecticut State Agencies provides, in pertinent part, that:
| When a party fails to request a hearing within the time specified in the notice, the allegations against the party may be deemed admitted. Without further proceedings or notice to the party, the commissioner shall issue a final decision in accordance with section 4-180 of the Connecticut General Statutes and section 36a-1-52 of the Regulations of Connecticut State Agencies, provided the commissioner may, if deemed necessary, receive evidence from the department, as part of the record, concerning the appropriateness of the amount of any . . . fine . . . sought in the notice[;] |
WHEREAS, Section 36b-15 of the Act provides, in pertinent part, that:
| (a) | The commissioner may, by order, deny . . . any registration . . . if the commissioner finds that (1) the order is in the public interest, and (2) the applicant . . . or, in the case of . . . [an] investment adviser, any partner, officer, or director, any person occupying a similar status or performing similar functions, or any person directly or indirectly controlling the . . . investment adviser . . . (B) has wilfully violated or wilfully failed to comply with any provision of sections 36b-2 to 36b-34, inclusive, or a predecessor statute or any regulation or order under said sections or a predecessor statute[.] | |
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| (e) | (1) . . . [W]ithdrawal of an application for registration as . . . [an] investment adviser . . . becomes effective ninety days after receipt of . . . a notice of intent to withdraw such application for registration or within such shorter period of time as the commissioner may determine, unless . . . a proceeding to deny . . . the withdrawal is instituted within ninety days after the application or notice is filed. If a proceeding is pending or instituted, withdrawal becomes effective at such time and upon such conditions as the commissioner by order determines. If no proceeding is pending or instituted and withdrawal automatically becomes effective, the commissioner may nevertheless institute a denial . . . proceeding under subsection (a) of this section within one year after withdrawal became effective. | |
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| (f) | No order may be entered under this section . . . without (1) appropriate prior notice to the applicant . . . (2) opportunity for hearing, and (3) written findings of fact and conclusions of law[;] |
WHEREAS, Section 36b-31(a) of the Act provides, in pertinent part, that “[t]he commissioner may from time to time make . . . such . . . orders as are necessary to carry out the provisions of sections 36b-2 to 36b-34, inclusive”;
AND WHEREAS, Section 36b-31(b) of the Act provides, in pertinent part, that “[n]o . . . order may be made . . . unless the commissioner finds that the action is necessary or appropriate in the public interest or for the protection of investors and consistent with the purposes fairly intended by the policy and provisions of sections 36b-2 to 36b-34, inclusive.”
II. FINDINGS OF FACT AND CONCLUSIONS OF LAW
| 1. | The Commissioner finds that the facts as set forth in paragraphs 7 through 25, inclusive, of the Notice, shall constitute findings of fact within the meaning of Section 4-180(c) of the General Statutes of Connecticut and Section 36a-1-52 of the Regulations of Connecticut State Agencies, and that the Statutory Basis for Order to Cease and Desist, Denial of Registration as an Investment Adviser, Order Imposing Fine and Order Denying Withdrawal set forth in paragraphs 26 through 29, inclusive, of the Notice shall constitute conclusions of law within the meaning of Section 4-180(c) of the General Statutes of Connecticut and Section 36a-1-52 of the Regulations of Connecticut State Agencies. |
| 2. | The Commissioner finds that Harbor Vista committed at least one violation of Section 36b-23 of the Act, and at least one violation of Section 36b-31-14e(a) of the Regulations. |
| 3. | The Commissioner finds that the facts require the issuance of an order denying Harbor Vista’s registration as an investment adviser in Connecticut and the imposition of a fine upon Harbor Vista. |
| 4. | The Commissioner finds that the Notice was given in compliance with Sections 36b-15(f) and 36b-27 of the Act and Section 4-177 of the General Statutes of Connecticut. |
| 5. | The Commissioner finds that the issuance of an order denying Harbor Vista’s registration as an investment adviser in Connecticut and the imposition of a fine upon Harbor Vista is necessary and appropriate in the public interest and for the protection of investors and consistent with the purposes fairly intended by the policy and provisions of Sections 36b-2 to 36b-34, inclusive, of the Act. |
III. ORDER
Having read the record, I HEREBY ORDER, pursuant to Sections 36b-15 and 36b-27(d) of the Act, that:
| 1. | On the date of entry of this Order, the registration of Harbor Vista Wealth Management LLC as an investment adviser in Connecticut is hereby DENIED; |
| 2. | A fine of Twenty-five Thousand Dollars ($25,000) shall be imposed upon Harbor Vista Wealth Management LLC, such fine to be remitted to the Department by cashier’s check, certified check or money order, made payable to “Treasurer, State of Connecticut”, no later than forty-five (45) days from the date this Order is entered; and |
| 3. | This Order shall become final when entered. |
| Entered at Hartford, Connecticut, | _____/s/____________ | |
| this 27th day of July 2016. | Jorge L. Perez | |
| Banking Commissioner |
This Order was sent by certified mail,
return receipt requested, to Harbor Vista
on July 27, 2016.
Harbor Vista Wealth Management LLC
46 Southfield Avenue
3 Stamford Landing, Suite 205
Stamford, Connecticut 06902
Certified mail no. 7012 3050 0000 6999 9901