vs. ) CASE NO. 93-2115
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 21, 1994, in Fort Lauderdale, Florida.
For Respondent: Steven D. Fieldman, Esquire
The issue presented is whether Petitioner's application for licensure as a real estate salesperson should be granted.
On March 17, 1993, Respondent denied Petitioner's application for licensure, and Petitioner timely requested a formal hearing regarding that denial. This cause was
thereafter transferred to the Division of Administrative Hearings to conduct a formal proceeding. Petitioner subsequently withdrew his request for a formal hearing, and the file of the Division of Administrative Hearings was closed by Order entered October 28, 1993. Upon Petitioner's request that Respondent afford him another opportunity for a formal hearing, Respondent granted that request and referred this cause back to the Division of Administrative Hearings. An Order Reopening the File of the Division was entered on January 26, 1994.
Petitioner testified on his own behalf and presented the testimony of Carol Sylvestri, Ronald W. Barnes, Raymond Solebello, Roger Crawford, Thomas VanBronkhorst, Donna Steele, and Susan Anderson. Respondent presented the testimony of Donna Johnson, Richard Stubblefield, and Stanley Amber. Additionally, Petitioner's Exhibits numbered 1-3 and Respondent's Composite Exhibit numbered 1 were admitted in evidence.
Only the Respondent submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
On July 14, 1989, a Final Judgment was entered in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, against Petitioner and in favor of Kandace Dimas, the Plaintiff in that action. That Final Judgment contained specific findings that Petitioner had acted as a mortgage broker without a license in a transaction which "was infested with usury." That Final Judgment awarded to the Plaintiff the sum of $29,700, together with interest at the rate of 12 percent. A Supplemental Final Judgment was entered against Petitioner on August 24, 1989, requiring Petitioner to pay the Plaintiff an additional sum of $7,728.90 to reimburse her for her attorney's fees and costs.
Because Petitioner was a real estate broker licensed in the State of Florida at the time, the matter, and those final judgments, were brought to the attention of the Florida Real Estate Commission. On February 20, 1990, the probable cause panel of the Commission determined that probable cause existed, and an Administrative Complaint
against Petitioner was issued by the Department of Professional Regulation on February 22, 1990, alleging that Petitioner had also violated the law regulating his conduct as a licensed real estate broker by his conduct in the mortgage transaction involving Kandace Dimas.
In order to resolve the issues raised in that Administrative Complaint, Petitioner and the Department of Professional Regulation entered into a Stipulation whereby Petitioner neither admitted nor denied the facts contained in the Administrative Complaint but agreed that the Commission should take the following disciplinary action against him:
7. The [Petitioner] shall be reprimanded, pay restitution in the amount of $5,000 and pay an administrative fine of $300, which fine shall be made payable to the Department of Professional Regulation, Division of Real Estate within thirty (30) days from the date of filing of the Final Order. [Petitioner] shall also be placed on probation for a period of 1 year at which time the [Petitioner] shall complete a 45 hour salesman's course and work only as a salesman. If any of the above conditions
are not met, the [Petitioner's] license shall be revoked.
The Florida Real Estate Commission approved that Stipulation in a Final Order entered March 5, 1991.
Over the next year, Petitioner continued with his licensed real estate activities. He did not pay the administrative fine. Petitioner made no effort to pay the required $5,000 as restitution and made no effort to take the required 45-hour salesman's course.
At the time that the Final Order approving the Stipulation was entered, Petitioner was employed at Amber Realty, Inc., d/b/a Re/Max Dynamic, and he continued his employment there until June of 1991. He then became employed by Re/Max Dovesway Realty, Inc., where he worked until January of 1992. He then returned to Amber Realty and worked there until he was terminated on October 2, 1992.
While Petitioner was employed performing licensed real estate activities, he was also employed in the mortgage business. He began working as a loan originator for Paragon Mortgage Company in late 1991 and was employed there until April or May of 1993. He was terminated from that employment for several reasons, one of which was the branch manager's belief that Petitioner was also operating an outside business selling time shares out of Paragon's offices. After Paragon, Petitioner was employed by First Financial of Boston in the mortgage business until the end of 1993. He is currently employed by Pakmail Centers of America with duties described vaguely as franchise development and working with new franchise applicants.
By letter dated April 24, 1992, Respondent notified Petitioner of the imminent revocation of his license as follows:
You were placed on probation in 1991 and ordered to submit proof of completion of a
45 hour salesman's course before April 5, 1992. This you have failed to do. Unless I receive proof within 10 days that you complied with the Florida Real Estate Commission's order, and paid the ordered restitution, your real estate license will be revoked forthwith.
Petitioner did not respond to that letter/notice within 10 days.
On May 11, 1992, Respondent received from Petitioner a "written request for an extension to complete my educational requirements for probation." That correspondence made no mention of the requirement for restitution.
The Commission considered Petitioner's request on June 16, 1992, and entered an Order denying it. The Order specifically recited that Petitioner's probation expired March 5, 1992, that Petitioner's request for an extension was filed more than two months after the probationary period had ended, that Petitioner had failed to comply with the terms of the Stipulation, and that Petitioner had not paid the restitution or the administrative fine although Petitioner had alleged that he had enrolled in a course.
Petitioner subsequently requested that the Commission reconsider its order denying his request to extend probation. That request came before the Commission on July 21, 1992, and was denied. The Order entered August 4, 1992, concluded that Petitioner had sufficient time to comply with the terms he had agreed to, that Petitioner had chosen to not comply with the requirements of his probation until after a year had passed, and that Petitioner had stated no grounds for extending his probation.
On September 1, 1992, Petitioner filed with the Florida Real Estate Commission a Notice of Appeal of the August 4, 1992, Order. On May 19, 1993, that appeal was dismissed for lack of prosecution by the Fourth District Court of Appeal.
On October 2, 1992, someone advised Stan Amber, the real estate broker employing Petitioner at that time, that a notice had been published in the Florida Association of Realtors magazine that Petitioner's real estate license had been revoked. Amber looked in the magazine and verified that information. He also called the Department of Professional Regulation and again received verification. Amber terminated Petitioner's employment that day.
On October 29, 1992, Petitioner filed with Respondent an application for licensure as a real estate salesperson. Section (a) of question numbered 13 reads as follows:
Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or
is any proceeding now pending?
Petitioner answered that question in the affirmative.
In explanation of his affirmative answer to question numbered 13 (a), Petitioner wrote the following:
I entered into a stipulated agreement in 1991 with FREC wherein I was to pay a
300.00 fine serve one year as a salesman only
and take a 40 hr. cont. education course I complied with all of the above except taking the 40 hour course within the 1 year probationary period. I appealed to FREC for more time to take the course and was denied. My licence was revoked.
I have been working since then as loan officer for PMC Mgt.
I am now completing the entire 63 hour FREC I course and would like to apply to retake the state exam and get a new salesman's lic.
I was told by the Chairman of FREC after the hearing that if I did take FREC I, state exam, and reapply for a new license, then I
probably would be granted that new license as I will have completed more than the original requirement of my stipulated agreement.
Petitioner's explanation is not truthful since it omits mention of the requirement that he make restitution in the amount of $5,000.
Between April 5, 1992, and at least October 2, 1992, Petitioner engaged in real estate activities requiring licensure although his license had been revoked. During that time, Petitioner knew that he had not complied with the conditions of his probation and that his license had been revoked. It is not certain that Petitioner has refrained from engaging in real estate activities requiring licensure since October 2, 1992.
By the time of the final hearing in this cause, Petitioner had still not attempted to make restitution as required by the Stipulation accepted by Respondent on March 5, 1991. In approximately May of 1990, Petitioner gave his attorney $500 to apply toward the final judgment Kandace Dimas had obtained against Petitioner. After some time, Petitioner authorized his attorney to apply that money to the outstanding fees Petitioner owed to his attorney instead. No other attempt has been made by Petitioner either to satisfy that final judgment or to pay the restitution amount ordered by the Florida Real Estate Commission. Instead, Petitioner has attempted to avoid his obligation to Dimas by filing for bankruptcy approximately a year ago.
Between June or July 1991 and January 1992, while Petitioner was employed at Re/Max Dovesway, he obtained
$10,000 from the broker at that office for some investment purpose. Although Petitioner repaid some of that money, he has not repaid all of it. When attempts to collect the money from Petitioner pursuant to the final judgment he had obtained proved too stressful, that broker "cancelled" the remaining approximate $2,000 that Petitioner still owed in order to rid himself of that source of stress.
Petitioner has not demonstrated that he is of good character. He is not financially responsible and has not lived up to his legal obligations. He has demonstrated an unwillingness to comply with the licensure laws of a regulated profession.
Petitioner has not demonstrated rehabilitation since the revocation of his real estate license. He continued engaging in activities requiring licensure. He has still made no attempt to live up to his agreement, which became a legal requirement, to pay $5,000 in restitution. Petitioner maintains that his real estate license was revoked and his application for relicensure was denied because of one single mistake that he made in 1985 relating to Kandace Dimas. Petitioner fails to acknowledge that his license was revoked and his application for a new license denied for his own failure to comply with the conditions of probation to which he had agreed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Respondent's preliminary agency action of denial of Petitioner's application for licensure was based upon Petitioner's failure to prove that he is of good character, based upon his answers to questions numbered 9 and 13. During the final hearing in this cause, Respondent withdrew its denial based on Petitioner's answer to question numbered 9.
Section 475.17(1)(a), Florida Statutes, provides, in part, as follows:
(1)(a) An applicant for licensure who is a natural person must . . . be honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for . . . a salesperson's license must be competent and qualified to make real estate transactions and conduct negotiations there for with
safety to investors and to those with whom he may undertake a relationship of trust and confidence. If . . . his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended . . . the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration.
Petitioner has failed in his burden of proving by a preponderance of the evidence both that he is honest, trustworthy, truthful, and of good character and that because of the lapse of time and subsequent good conduct and reputation, the public will not likely be endangered by granting Petitioner's application for licensure. As to the first requirement, Petitioner presented as witnesses persons who attend the same church as he to testify to his integrity and good character. Although they did so testify, they also testified as to real estate transactions in which Petitioner acted as a licensed real estate agent after the date when his license was revoked. Further, those character witnesses were not aware that Petitioner had outstanding judgments against him.
On the other hand, the evidence regarding Petitioner's lack of good character is substantial. He entered into an agreement with the Florida Real Estate Commission to perform certain acts within one year or his license would be revoked. Despite the seriousness of the consequences, he failed to perform those acts during that 1-year time period. When notified by the Commission that his license would be revoked immediately unless he submitted proof within ten days of having accomplished those acts, he waited until after the 10-day deadline had
passed before he contacted the Commission, requesting that he be given another opportunity to begin fulfilling the conditions of his probation. When his request was denied, he continued to engage in the same activities requiring licensure as he had engaged in before his license was revoked. He was eventually terminated from his employment, not because Petitioner disclosed that he no longer had a license, but because someone else reported that information to Petitioner's employing broker.
Petitioner has made no attempt to pay the $5,000 required as restitution pursuant to his Stipulation approved by the Commission. Although some hearsay evidence was offered to show that Petitioner's attorney once made an attempt to arrange some type of payment schedule on the Dimas final judgment, such attempt was made in approximately April of 1990 and was unsuccessful. Petitioner's attorney made no further attempts, instead applying the $500 payment to Petitioner's outstanding legal fees. That minimal effort occurred prior to Petitioner's agreement in March of 1991 that he would pay $5,000 restitution. It is that agreement which Petitioner has failed to honor, as he has failed to respond to the final judgments his former broker and Kandace Dimas have obtained against him. Such conduct is not an indication of a person of good character; neither is his failure to disclose to Respondent in his answer to question numbered 13 that restitution was also a condition of his probation, that he had failed to make restitution, and, apparently, has no intention of doing so.
Petitioner's explanation that he continued to engage in real estate activities requiring licensure after his license was revoked because he did not know it was revoked and Petitioner's alternative explanation that he knew it was revoked but thought that the revocation was stayed because he had filed an appeal are not worthy of belief. Petitioner never appealed the Order of March 5, 1991, which adopted the Stipulation which provided that Petitioner's license would be automatically revoked if he did not fulfill all conditions during the 1-year probationary period. Since Petitioner knew he had not fulfilled the conditions and since Petitioner admittedly received a letter/notice advising him that he had ten days to submit proof of compliance before his revocation became effective, there is no basis for believing that Petitioner did not know his license was revoked. Furthermore,
Petitioner did not appeal any of the Commission's orders until his September 1, 1992, appeal of the Commission's August 4, 1992, Order denying his request for reconsideration of the order denying his request for an extension of his probation which had already terminated.
By the time that appeal was taken, Petitioner's license had been revoked for a number of months.
Similarly, Petitioner is not entitled to licensure because a lapse of time and subsequent good conduct and reputation make it likely that the public will not be endangered. His license was revoked in April of 1992. Thereafter, Petitioner began engaging in the unlicensed practice of real estate and did so for almost 6 months. He was stopped from continuing to do so on October 2, 1992, when his employing broker discovered the revocation and terminated Petitioner's employment. Petitioner filed this application for licensure that same month. There has been no meaningful lapse of time, and Petitioner has not shown subsequent good conduct, particularly since he still fails to comply with the Commission's order that he make restitution in the amount of $5,000.
RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a real estate salesperson.
DONE and ENTERED this 30th day of June, 1994, at Tallahassee, Florida.
LINDA M. RIGOT
this 30th day of June, 1994.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-2115
Steven D. Fieldman, Esquire Assistant Attorney General Suite 107, South Tower
Darlene F. Keller, Director Department of Business and Professional Regulation Division of Real Estate
Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filingexceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
