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RANDALL BRUCE HYTEN d/b/a * * * * * * * * * * * * * * * * * * |
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CONSENT ORDER No. CO-09-7718-S |
PRELIMINARY STATEMENT
WHEREAS, the Banking Commissioner (the “Commissioner”) is charged with the administration of Chapter 672a of the Connecticut General Statutes, the Connecticut Uniform Securities Act (the “Act”) and Sections 36b-31-2 et seq. of the Regulations of Connecticut State Agencies (the “Regulations”) promulgated under the Act;
WHEREAS, Randall Bruce Hyten (CRD number 4709701) was, at all times pertinent hereto, a sole proprietorship doing business as RH Planning & Advisory;
WHEREAS, from November 13, 2003 to December 31, 2005, when it failed to renew its New York investment adviser registration, RH Planning & Advisory was registered as an investment adviser in the State of New York only, and maintained its office at 313 Clinton Avenue, Unit 1, Brooklyn, New York;
WHEREAS, in 2006, Randall Hyten relocated to Connecticut from New York for personal reasons;
WHEREAS, from 2006 to February 2009, Randall Hyten d/b/a RH Planning & Advisory continued to render investment advisory services from Connecticut to preexisting non-Connecticut clients and acquired two new non-Connecticut clients;
WHEREAS, on February 17, 2009, RH Planning & Advisory reapplied for investment adviser registration in New York;
WHEREAS, on March 16, 2009, 1) RH Planning & Advisory withdrew its pending investment adviser application in New York, stating that it had closed its investment advisory practice on March 9, 2009; and 2) Randall Hyten advised the Securities and Business Investments Division of the Department of Banking (the “Division”) that he had been servicing non-Connecticut clients since 2006;
WHEREAS, Randall Bruce Hyten d/b/a RH Planning & Advisory has represented to the Division in writing that he did not receive advice from an attorney or compliance consultant regarding Connecticut investment adviser registration requirements;
WHEREAS, Section 36b-6(c)(1) of the Act provides, in part, that: “No person shall transact business in this state as an investment adviser unless registered as such by the commissioner as provided in sections 36b-2 to 36b-33 . . . . ”
WHEREAS, the Commissioner, acting pursuant to Section 36b-26 of the Act and through the Division, has conducted an investigation into the activities of Randall Bruce Hyten d/b/a RH Planning & Advisory to determine whether Randall Bruce Hyten d/b/a RH Planning & Advisory had violated, was violating or was about to violate any provision of the Act or any regulation or order under the Act;
WHEREAS, as a result of such investigation, the Commissioner alleges that from 2006 until February 2009, Randall Bruce Hyten d/b/a RH Planning & Advisory transacted business as an investment adviser from Connecticut absent registration under Section 36b-6(c) of the Act;
WHEREAS, the foregoing allegations, if proven, would support proceedings under Section 36b-27 of the Act seeking the entry of an order to cease and desist and/or an order imposing an administrative fine of up to $100,000 per violation against Randall Bruce Hyten d/b/a RH Planning & Advisory;
WHEREAS, an administrative proceeding under Section 36b-27 of the Act would constitute a “contested case” within the meaning of Section 4-166(2) of the Connecticut General Statutes;
WHEREAS, Section 4-177(c) of Chapter 54 of the Connecticut General Statutes provides that “[u]nless precluded by law, a contested case may be resolved by stipulation, agreed settlement, or consent order or by the default of a party”;
WHEREAS, Section 36b-31(a) of the Act, provides, in relevant 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-33, inclusive [of the Act]”;
WHEREAS, the Commissioner finds that the entry of this Consent Order 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 the Act;
WHEREAS, without holding a hearing and without trial or adjudication of any issue of fact or law, and prior to the initiation of any formal proceeding, the Commissioner and Randall Bruce Hyten d/b/a RH Planning & Advisory reached an agreement, the terms of which are reflected in this Consent Order, in full and final resolution of the matters described herein;
WHEREAS, Randall Bruce Hyten d/b/a RH Planning & Advisory, through his execution of this Consent Order, represents and agrees that none of the violations alleged in this Consent Order shall occur in the future;
WHEREAS, Randall Bruce Hyten d/b/a RH Planning & Advisory agrees to the terms of this Consent Order, and agrees to the language in this Consent Order;
CONSENT TO WAIVER OF PROCEDURAL RIGHTS
WHEREAS, Randall Bruce Hyten d/b/a RH Planning & Advisory, through his execution of this Consent Order, voluntarily waives the following rights:
| 1. | To receive prior written notice within the meaning of Sections 36b-27(a), 36b-27(d) and 4-177(b) of the Connecticut General Statutes; |
| 2. | To present evidence and argument and to otherwise avail himself of Section 4-177c(a) of the Connecticut General Statutes; |
| 3. | To present his position in a hearing in which he is represented by counsel; |
| 4. | To have a written record of the hearing made and a written decision issued by a hearing officer; and |
| 5. | To seek judicial review of, or otherwise challenge or contest, the matters described herein, including the validity of this Consent Order. |
FINDINGS OF THE COMMISSIONER AS TO EVIDENTIARY SUFFICIENCY TO INITIATE ADMINISTRATIVE PROCEEDINGS
WHEREAS, the Commissioner finds that, based on the following, which Randall Bruce Hyten d/b/a RH Planning & Advisory admits, sufficient grounds would exist to initiate administrative proceedings under Section 36b-27 of the Act seeking the entry of an order to cease and desist and/or an order imposing an administrative fine of up to $100,000 per violation against Randall Bruce Hyten d/b/a RH Planning & Advisory:
| From 2006 until February 2009, Randall Bruce Hyten d/b/a RH Planning & Advisory transacted business as an investment adviser from Connecticut absent registration in violation of Section 36b-6(c) of the Act; |
CONSENT TO ENTRY OF SANCTIONS
WHEREAS, Randall Bruce Hyten d/b/a RH Planning & Advisory, through his execution of this Consent Order, consents to the Commissioner’s entry of a Consent Order imposing on him the following sanctions:
| 1. | Randall Bruce Hyten shall cease and desist from engaging in conduct constituting or which would constitute a violation of the Act or any regulation or order under the Act, either directly or through any organizational or other device, such conduct including, without limitation, transacting business as an investment adviser in violation of Section 36b-6(c)(1) of the Act; and | |
| 2. | (A) | For a period five (5) years commencing on the date this Consent Order is entered by the Commissioner, Randall Bruce Hyten shall be barred from applying for registration as an investment adviser in Connecticut; |
| (B) | After five (5) years have elapsed from the date this Consent Order is entered by the Commissioner, Randall Bruce Hyten may apply for registration as an investment adviser under the Act, provided he presents to the Division Director, concurrent with such application, a written submission stating that he has not been the subject of any securities-related complaint, action or proceeding since the date of this Consent Order and that he has at all times been in compliance with this Consent Order. The Commissioner, in the Commissioner’s sole discretion, may enter Randall Bruce Hyten’s name on the appropriate register, deny such registration, or restrict or impose conditions on any such registration without making the findings required by Section 36b-15(a) of the Act or complying with the requirements of subsections (f) and (g) of Section 36b-15 of the Act; |
CONSENT ORDER
NOW THEREFORE, the Commissioner enters the following:
| 1. | The Sanctions set forth above be and are hereby entered; |
| 2. | Entry of this Consent Order by the Commissioner is without prejudice to the right of the Commissioner to take enforcement action against Randall Bruce Hyten based upon a violation of this Consent Order or the matters underlying its entry, if the Commissioner determines that compliance with the terms herein is not being observed or if any representation made by Randall Bruce Hyten and reflected herein or in any written communication by Randall Bruce Hyten to the Division relating to the matters herein described is subsequently determined to be untrue; and |
| 3. | This Consent Order shall become final when entered. |
________/s/_________
Howard F. Pitkin
Banking Commissioner
So ordered at Hartford, Connecticut
this 7th day of October 2009.
this 7th day of October 2009.
CONSENT TO ENTRY OF ORDER
I, Randall Bruce Hyten, state that I have read the foregoing Consent Order; that I know and fully understand its contents; that I agree freely and without threat or coercion of any kind to comply with the terms and conditions stated herein; and that I voluntarily consent to the entry of this Consent Order, expressly waiving any right to a hearing on the matters described herein.
________/s/________________________
Randall Bruce Hyten
Subscribed and sworn to before me
this 5th day of October, 2009.
_______________/s/_______________________
Notary Public/Commissioner of the Superior Court
My Commission Expires: Nov. 30, 2011