STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-3722

) FRANK EFSTATHIOS TOULOUMIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on November 7, 1997, in Tampa, Florida, before the Honorable Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Senior Attorney

Department of Business and Professional Regulation, Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

For Respondent: Frederick H. Wilsen, Esquire

1415 East Robinson Street, Suite B Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On March 12, 1997, the Petitioner, Department of Business and Professional Regulation (Petitioner), filed a one-count Administrative Complaint against Respondent, Frank Efstathios Touloumis (Respondent). The Administrative Complaint alleged that Respondent knowingly and intentionally submitted a false and incomplete response to one question on his application for a salesperson's license. The Respondent timely filed an Election of Rights form disputing the charges and requested a formal hearing.

By letter dated August 6, 1997, the matter was referred to the Division of Administrative Hearings which noticed and conducted the formal hearing. At the final hearing, the Petitioner presented no witnesses and had four exhibits admitted into evidence. The Respondent testified on his own behalf and presented one witness, Anesti Siandris, and offered no exhibits.

The transcript of the proceeding was filed on December 1, 1997. At the conclusion of the hearing, the time set for submitting proposed recommended orders was twenty days from the filing of the transcript. Both parties timely filed proposed recommended orders.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code.

2. Respondent is and, at all times material hereto, was a duly licensed real estate salesperson in the State of Florida.

3. Respondent is now and was at all times material herein actively engaged in major real estate developments and has also operated on behalf of family owned corporations. During the relevant time period, Respondent has not engaged in the general real estate brokerage business.

4. On August 16, 1984, Respondent was found guilty in federal court of one count of knowingly, willfully, and unlawfully participating in the use of extortionate means to collect and attempt to collect an extension of credit in violation of Title 18, United States Code, Section 894. Respondent was sentenced to 18 months in prison and fined $2,000.

5. The incident which gave rise to the conviction occurred in and while the Respondent was a resident of Illinois, and prior to the Respondent's being issued his Florida real estate license.

6. Respondent testified that in 1983 he owned a Chicago nightclub. According to Respondent, during that time period someone owed Respondent a gambling debt in the amount of $36,000. The person who owed the money to Respondent said he would pay the

   debt. Because the Respondent was leaving town, he asked his wife's uncle to pick up the money. The Respondent indicated, that unknown to him, the uncle used unlawful means in an attempt to collect the funds. It was this collection effort which eventually lead to the Respondent's arrest, not guilty plea, and guilty verdict in 1984.

7. The Respondent moved to Florida and, subsequently, on or about January 19, 1994, he applied to become licensed as a Florida real estate salesperson. The application contained an affidavit which provided in part that "such responses are true and correct, and are as complete as his/her knowledge, information and records permit without any evasions or mental reservations whatsoever."

8. Petitioner's application form contained Question 9 which requested information concerning an applicant's criminal history. In pertinent part the question is as follows:

   Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned.

   * * *

   Your answer to this will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate.

9. In response to this question, Respondent answered in the negative by marking the "no" box. On April 18, 1994, the State of Florida issued Respondent license #0611142 as a real estate salesperson.

10. On January 10, 1994, Respondent signed the application. By his duly notarized signature, the Respondent swore that all answers and information provided on his application were true, correct, and complete.

11. On or about January 16, 1995, Respondent applied to become licensed as a real estate broker in the State of Florida.

12. Respondent, again, checked "no" to Question 9 on his broker's application as to whether or not he had ever been convicted or found guilty of any crime.

13. Also, Respondent again swore that all answers and information contained in his application to become a real estate broker in the State of Florida were true, correct, and complete. Again, the Respondent's signature was duly notarized.

14. The broker's application was approved for the Petitioner. However, a broker's license was not issued because Respondent failed to pass the state examination required to be licensed as a broker.

15. Respondent testified at the formal hearing that the reason he did not disclose his prior conviction on his real estate applications was that he had spoken to his brother who

    advised him that matters over 10 years old did not have to be disclosed.

16. Respondent did not consult with an attorney, the Division of Real Estate or anyone else other than his brother about how to answer Question 9 on his real estate application.

17. Respondent's stated justification for checking "no" on his license applications lacked credibility given the clear wording of Question 9 on the application form.

18. The Respondent has had no other incidents of criminal problems. Similarly, there have been no civil judgments involving the Respondent and dishonest dealing. Finally, there have been no prior disciplinary matters against the Respondent.

19. The Respondent has served in the military and was honorably discharged and earned a two-year degree in electronics.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administration Hearings has jurisdiction over the parties and the subject matter pursuant to Chapter 120, Florida Statutes, and Title 60Q, Florida Administrative Code.

21. Petitioner has the burden of proof as to the allegations contained in the administrative complaint. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349(Fla. 1st DCA 1977). In license disciplinary proceedings, the burden of proof is by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla 1987).

22. Section 475.25, Florida Statutes, authorizes Petitioner to discipline a real estate license if the licensee has obtained a real estate license by "means of misrepresentation or concealment." Section 475.25(1)(m), Florida Statutes.

23. Respondent's stated justification for checking "no" to Question 9 lacked credibility. Respondent knew or should have known that he was making material misstatement of fact on his real estate application by answering Question 9 the way he did. See Ocean Bank of Miami Florida vs. Inv-Uni Investment Corp., 599 So. 2d 694, 697 (Fla. 3rd DCA 1992). Although scienter or guilty knowledge is an element of intentional misconduct, it may be established by showing that the accused was reckless or careless as to the truth of the matter asserted.

24. In the instant case, Question 9 was clear and unambiguous. Based on the wording of the question and the instructions, it was obvious that the Petitioner wanted any and all information related to the applicant's criminal background. There was no basis for the Respondent's conclusion that an offense committed more than 10 years prior to the application date was to be excluded. Furthermore, the application provided that "If you do not fully understand this question, consult with an attorney or the Division of Real Estate." Respondent indicated that he consulted only with his brother, who is neither an attorney nor an employee of the Division of Real Estate. Accordingly, Respondent is guilty of making an intentional or

    reckless misrepresentation in order to obtain his real estate license.

25. Petitioner has proved by clear and convincing evidence that Respondent obtained a license by means of misrepresentation or concealment (by failing to disclose his prior felony conviction) in violation of Section 475.25(1)(m), Florida Statutes, as alleged in Count I of the Administrative Complaint.

26. The discipline which may be imposed against a real estate licensee may include: revocation, suspension for a period not exceeding ten (10) years, imposition of an administrative fine not to exceed $1,000 for each count or separate offense, a reprimand, probation, and any or all of the foregoing. Section 475.25(1), Florida Statutes. Rule 61J2-24.001(3), Florida Administrative Code, provides that the suggested penalty for a violation of Section 475.25(1)(m), Florida Statutes, is revocation and a $1,000.00 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00.

DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this * day of February, 1998.

*Filed with the Clerk undated. -ac

COPIES FURNISHED:

Geoffrey T. Kirk, Senior Attorney Department of Business and Professional

Regulation, Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Frederick H. Wilsen, Esquire

1415 East Robinson Street, Suite B Orlando, Florida 32801

Henry M. Solares, Division Director Department of Business and Professional

Regulation, Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

July 21, 1999

Henry M. Solares, Division Director Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis

DOAH Case No. 97-3722

Dear Mr. Solares:

Enclosed is the Amended Recommended Order issued in the referenced case. It was issued in order to correct a scrivenners error in page 8 of the original order. Please replace page 1 and page 8 enclosing for pages 1 and 8 oriignally sent to you.

Please accept my apologies for any inconvenience this might have caused.

Sincerely,

CSH/scl Enclosures

cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire

CAROLYN S. HOLIFIELD

Administrative Law Judge

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-3722

) FRANK EFSTATHIOS TOULOUMIS, )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on November 7, 1997, in Tampa, Florida, before the Honorable Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Senior Attorney

Department of Business and Professional Regulation, Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

For Respondent: Frederick H. Wilsen, Esquire

1415 East Robinson Street, Suite B Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.

Administrative Code, provides that the suggested penalty for a violation of Section 475.25(1)(m), Florida Statutes, is revocation and a $1,000.00 fine.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00.

DONE AND ENTERED this 13th day of February, 1998, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1998.

February 19, 1998

Henry M. Solares, Division Director Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis

DOAH Case No. 97-3722

Dear Mr. Solares:

Enclosed is page 1 and page 9 of the Second Amended Recommended Order issued in the referenced case. It is issued in order to correct page 9.

Also to provide copies to Lynda L. Goodgame, General Counsel, who was omitted from the previous Recommended Orders.

Please accept my apologies for any inconvenience this might have caused.

Sincerely,

CSH/scl Enclosures

cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire

CAROLYN S. HOLIFIELD

Administrative Law Judge

Lynda L Goodgame, General Counsel

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-3722

) FRANK EFSTATHIOS TOULOUMIS, )

)

Respondent. )

)

SECOND AMENDED RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was held in this case on November 7, 1997, in Tampa, Florida, before the Honorable Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Senior Attorney

Department of Business and Professional Regulation, Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

For Respondent: Frederick H. Wilsen, Esquire

1415 East Robinson Street, Suite B Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.

COPIES FURNISHED:

Geoffrey T. Kirk, Senior Attorney Department of Business and Professional

Regulation, Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Frederick H. Wilsen, Esquire

1415 East Robinson Street, Suite B Orlando, Florida 32801

Henry M. Solares, Division Director Department of Business and Professional

Regulation, Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-003722

Orders for Case No: 97-003722