The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, in Tallahassee, Florida. R.L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1982.
Findings Of Fact At all times material to these proceedings, the Respondent was the holder of Florida real estate license number 0201688. The last license issued was as a nonactive broker with a home address of 2281 Euclid Avenues Fort Myers, Florida. On December 10, 1986, the Respondent entered a plea of guilty to the offense of obtaining a controlled substance by fraud in Case No. 861034CF in the Circuit Court of Lee County, Florida. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. The Respondent did not notify the Petitioner in writing of his plea within the thirty-day period because he believed he had entered a plea to a misdemeanor, which was exempt from the reporting requirement of 475.25(1)(p), Florida Statutes. A letter from his attorney before the plea was entered reflected an intent to enter a plea to a misdemeanor, subject to acceptance by the court. On July 15, 1987, in Case No. 86-1790CF in the Circuit Court of Lee County, Florida, the Respondent entered nolo contendere pleas to uttering a forged instrument in Counts I, III, V, VII, IX, XI, and XIII and grand theft in Counts II, VI, VIII, X, XII, and XIV. These charges involved personal business affairs and did not involve misconduct by the Respondent as a real estate salesman or broker. The Respondent notified the Florida Real Estate Commission of his adjudication of guilt for the grand thefts and the utterings of forged instruments in Case No. 86-1790CF by letter dated August 7, 1987. There are no specific findings of mitigating or aggravating circumstances as none were presented during the hearing of this case.
Findings Of Fact Petitioner, Keith T. Loggins, on August 13, 1982, under oath, signed an application for licensure as a real estate salesman of the Florida Real Estate Commission. This application was filed with the Florida Real Estate Commission on September 1, 1982. Question 6 on that form states: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? to which he answered, "No." This answer was false. Petitioner was arrested by the Orange County Sheriff's Office on November 14, 1972, on a charge of grand larceny in connection with a burglary and breaking and entering. Pursuant to a plea of guilty, he was placed on probation for five years. On May 23, 1974, Petitioner was arrested by the Osceola County Sheriff's Office on a charge of embezzlement, but was not tried, and the case was dropped. Petitioner denies any knowledge of possible grounds for this arrest. In May, 1975, Petitioner was convicted of a probation violation, and his probation was modified to include four months' confinement in county jail, and five months later, he was arrested for grand theft by fraud on insufficient fund check, convicted of grand larceny, and sentenced to serve five years in Florida State Prison. Thereafter, on August 6, 1975, Petitioner was convicted upon his pleas of guilty in Circuit Court for Orange County, Florida, on two separate cases involving obtaining property by worthless check written in March, 1975, one a felony count and one a misdemeanor count. He was sentenced to four years' imprisonment on the felony and one year on the misdemeanor, the terms to run concurrently. On September 29, 1975, he was placed on probation for seven years to start upon his release from prison, which took place on August 1, 1978. His probation, which should have run to the end of July, 1985, was, however, terminated, and Petitioner was discharged on October 20, 1982, almost three years early because of the recommendations of his probation officer, Connie Reed, with the approval of her supervisor, Mr. Charles L. Steen. Since his release from prison in August, 1978, Petitioner has held numerous jobs ranging from that of a laborer to that of assistant manager of a motel. In each instance, he left the position of his own volition to improve his income or working hours. He has never been fired nor have there ever been any complaints about his work. He has held positions of trust and of responsibility and in several cases has had the requirement to handle, unsupervised, substantial sums of money. No shortages were discovered. In his last two positions, Petitioner has been a salesperson of time- sharing resort condominiums, as a salaried employee of the developer. He is very cautious in his approach and delivery to prospects because of the close scrutiny given this type of operation. Both his current and a prior supervisor indicate he has performed his duties satisfactorily, and they have not received any complaints about the Petitioner. Petitioner was quite frank about his past when interviewing for the positions and in no sense tried to hide his criminal record. In both jobs, Petitioner has handled funds of the company, and there has not been any indication of trouble or shortage. Petitioner wants the license to sell real estate because it would open the door for him to a much greater earning potential. In his current job, for example, he has earned $600 in the month he has been there. Had he had a salesman's license and been on a commission basis, his earnings would have been much higher. Additionally, receiving the license would give him a certain amount of status and an ego boost, especially after the way he started his adult life. Both Ms. Reed and Mr. Steen, his former probation officials, feel Petitioner has been fully rehabilitated entirely through his own motivation and effort. His early offenses were when he was a young man and influenced by the use of drugs which he no longer uses. Since his release from probation he has had only two traffic citations, one for failing to stop at a stop sign, and one for failing to yield the right-of-way, resulting in an accident. When Petitioner's application for a license was first denied, he requested an informal hearing before the Commission, at which time he told the members he knew when he filled out the application form if he answered accurately, there was no way he would get his license. He now admits that answering falsely was the wrong thing to do. He understood the question, and his answer was what he intended to say and not an error. He answered falsely because the most recent arrest was seven years old, and his current life-style is completely different than his life-style then. His prior arrests and convictions in a moral sense, he feels, have no bearing on his present life, and he felt he had paid his debts to society. He now realizes that his answer to Question 6 should have been accurate and to falsify was a mistake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner be denied licensure as a real estate salesman. RECOMMENDED this 19th day of April, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1983. COPIES FURNISHED: Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741 Lawrence S. Gendzier, Esquire Assistant Attorney General Department of Legal Affairs 400 West Robinson Street Room 212 Orlando, Florida 32801 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Harold Huff Executive Director Florida Real Estate Commission Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether respondent's license to practice optometry should be disciplined on charges that he failed to comply with, or violated, a lawful order of the Board of Optometry.
Findings Of Fact At all times material hereto, respondent was licensed as an optometrist, having been issued license number 0001338 by the Board of Optometry (P1, P2). On January 28, 1981, a Final Order was entered by the Board of Optometry which applied to respondent and his license to practice optometry. The Final Order, which resulted from a disciplinary proceeding against respondent, provided in pertinent part: That Respondent's license be suspended for a period of three months, to be served from February 5, 1981 to May 4, 1981, or immediately upon the lifting of any stay or other intervening legal process. During the period of suspension the Respondent may not hold himself out as an optometrist or practice optometry. That Respondent pay a fine of $500.00 for each count of the Administrative Complaint, for a total of $2500.00 to be paid as ordered in the imposition of probation on the Respondent. That the Respondent serve a period of probation of three years, which shall commence on May 5, 1981, or three months after the lifting of any stay or other intervening legal process. The terms of the probations shall be as follows: The Respondent shall obey all laws and regulations of the State of Florida. The Respondent shall inform the Board of any change of his address, including his residence address and all locations at which he practices optometry. The Respondent shall appear before the Board to report on his activities in six months and semiannually thereafter. The Board shall give the Respondent notice of those meetings held at or near Miami, Florida at which the Respondent should appear. The Respondent shall pay the fine of $2500.00 imposed by February 5, 1982, or one year after the lifting of any stay or other intervening legal process. (e.s.) Respondent appealed this Final Order to the Third District Court of Appeal of Florida, which upheld the order. Respondent then filed a petition for rehearing, which was denied by order of the Court, dated January 13, 1982. On January 21, 1982, respondent filed a motion for stay with the Florida Supreme Court, which motion was later withdrawn. (Testimony of Gardner, P-5, R-1, R-3). By letter dated January 22, 1982, respondent asked for permission to appear before the Board of Optometry on February 6 and 7, 1982, and further requested that the order, which he had unsuccessfully appealed, be stayed pending his appearance. When he appeared before the Board of Optometry on February 6, 1982, asking for a less severe penalty, the Board's attorney advised that due process had transpired and that the Board had no further jurisdiction to reopen the case. The Board took no action. (Testimony of Gardner, R-1, R-3) Under the Board's Final Order, respondent's license to practice optometry was effectively suspended from January 28, 1982 (15 days after the Third District's denial of his petition for rehearing), until April 28, 1982. This suspension commenced immediately upon the completion or lifting of all intervening legal processes. Under Rule 9.340, Florida Rules of Appellate procedure, that event took place 15 days from the Court's order denying rehearing. (Testimony of Gardner, P-2, R-1, R-3) Under paragraph 3.d) of the Final Order, the $2,500 fine became due and payable on January 28, 1983, one year after the lifting of any stay or the completion of the intervening legal process. Respondent, however, failed to pay the fine by January 28, 1983. (Testimony of Gardner, P-2, P-3) On or about March 8, 1983, Mildred Gardner, Executive Director for the Board of Optometry, sent a "bill" to respondent indicating that the payment of respondent's fine was past due. (Testimony of Gardner, P-4) On or about March 22, 1983, respondent paid, by check, the $2,500 fine to the Board of Optometry. The check was subsequently cashed by the Board without express reservation or protest. (Testimony of Gardner, respondent, P-3)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be administratively fined $500 for violating Section 463.016(1)(s), Florida Statutes (1981). DONE and ENTERED this 7th day of December, 1983, in Tallahassee, Florida. R.L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1983.
The Issue Whether respondent placed an unpermitted sign alongside U.S. 29 0.7 miles south of U.S. 90 in Escambia County in violation of Section 479.07(1), Florida Statutes?
Findings Of Fact At the time and place appointed for the hearing, neither party appeared or adduced any evidence. The hearing officer was later apprised that the parties had reached at least an oral agreement settling the dispute.
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact On January 3, 1984, the Florida Department of Education issued teacher's certificate no. 346776, Joint Exhibit No. 1, to respondent Henry Willie Williams, who still holds the certificate. Application Inaccurate The form application Mr. Williams completed to obtain his teacher's certificate reached the Department on October 7, 1983. Question V on the application form asked: Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violations? Yes No Joint Exhibit No. 2 Respondent checked the blank after "No," before signing and submitting the notarized form, "certify [ing] that all information pertaining to this application is true and correct." Joint Exhibit No. 2. Some three years earlier, on October 28, 1980, Judge John M. Marees had adjudicated respondent guilty of driving while intoxicated in violation of Section 316.193, Florida Statutes (1979), imposed a fine of $150.00, and assessed costs of $9.50. State of Florida vs. Henry Willie Williams, No. 80- 43114-MN (Duval County Court; Oct. 28, 1980). Joint Exhibit No. 3. A witness for the Department testified to his "belief that something of this magnitude, you would know whether you had or had not been arrested," (T. 62), but conceded it was possible for a person to "read that language that says 'other than minor traffic offense' and not consider a DUI [sic] to be other than minor." Id. Arrest and Conviction While employed by the Duval County School Board, respondent Williams received satisfactory evaluations. (T. 63) He was relieved of teaching duties, however, and reassigned to the Duval County School Board's media center, after his arrest on May 1, 1987, on charges of marijuana, cocaine and drug paraphernalia possession. (T. 56) Officers W. E. Copeland and Ben Moore effected the arrest while executing a search warrant, at an apartment in the 3200 block of Ricky Drive in Jacksonville. Present in the apartment with respondent Williams was Yvonne M. Buggs, who described Mr. Williams as a confidante. Ms. Buggs escaped arrest. Just whose apartment they were in at the time was not entirely clear. On July 23, 1987, Judge Parsons adjudicated respondent guilty of possession of cocaine in violation of Sections 893.03(2)(a) and 893.13(1)(e), Florida Statutes (1987), a felony of the third degree. No. 873999 CF (Fla. 4th Cir.; July 23, 1987) Joint Exhibit No. 4. At the same time, the court also adjudged respondent guilty of possessing less than 20 grams of cannabis, in violation of Sections 893.13(1)(e) and (f), Florida Statutes (1987), a misdemeanor of the first degree. No. 87-3999 CF (Fla. 4th Cir.; July 23, 1987). The court found respondent not guilty on the paraphernalia count, sentenced him to 90 days in the county jail on the marijuana count, and placed respondent on three years' probation on the cocaine possession count, with 90 days' jail time as a special condition of probation. Joint Exhibit No. 4. On appeal, the District Court of Appeal, First District, reversed respondent's conviction on marijuana charges, but affirmed the felony conviction for possession of cocaine. Henry Williams vs. State of Florida, No. 87-836 (Fla. 1st DCA Aug. 10, 1988) (reh. den. Sept. 19, 1988) pet. rev. pnd'g No. 73,180 (Fla; pet. filed Oct. 14, 1988)(pet.'s brief on juris. filed Oct. 26, 1988). The petition for review was filed only after the District Court had issued its mandate. A witness for the Department testified that he "believe[d] the conduct would seriously affect the effectiveness of Mr. Williams as a teacher . . . [because a]t this particular time in history where the drug issue is such a major one, and such a major one in the community, we feel our teachers should be above charges that have been made against them." (T. 59) By "conduct," he meant that respondent "certainly was present, he certainly was involved to some degree with narcotics as well as lying on the record to obtain a certificate." (T. 60)
Findings Of Fact Based on the evidence presented at hearing, the Hearing Officer makes the following findings of fact: Phillip S. Wong is a convicted felon. On December 6, 1982, after entering a plea of guilty, he was adjudicated guilty of one count of each of the following crimes: aggravated assault with a deadly weapon without intent to kill, in violation of Section 784.021(1)(a), Florida Statutes; false imprisonment, in violation of Section 787.02, Florida Statutes; burglary of a dwelling during which an assault was made, in violation of Section 810.02, Florida Statutes; conspiracy to commit a felony, to wit: trafficking in cocaine, in violation of Sections 777.04 and 893.135, Florida Statutes; trafficking in cocaine, in violation of Section 893.135, Florida Statutes; and possession of cocaine with the intent to sell, in violation of Section 893.13, Florida Statues. For these offenses, all of which were committed in August of 1982, Wong received five 1/ separate three-year sentences of imprisonment that ran concurrently with one another. As a prisoner, Wong's conduct was exemplary. Accordingly, in May, 1984, he was placed in a work release program. He completed serving his sentence in September, 1985. Since his return to the community, Wong has married and become a father. To help support his family, he works as a chef in a French restaurant, a position he has held for the past four and a half years. Wong is now a dedicated family man concerned about the welfare of his wife and their two and a half year old child. This concern has prompted him to seek a career in real estate so that he will be better able to provide for his family.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for licensure to practice as a real estate salesman, without prejudice to Petitioner filing a subsequent application when he is able to show that his rehabilitation is sufficiently complete to entitle him to such licensure. See Karl v. Florida Real Estate Commission, 229 So.2d 610, 611 (Fla. 3d DCA 1969)(Commission may not preclude an applicant whose application has been denied because of a prior felony conviction from reapplying for licensure and showing subsequent rehabilitation). DONE and ENTERED this 10th day of April 1989, in Tallahassee, Leon County, Florida. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1989.
The Issue Whether J.C. Hoffman violated the provisions of Section 475.25(1)(a) and Section 475.25(2), Florida Statutes.
Findings Of Fact J. C. Hoffman also known as Jean Hoffman was a registered real estate salesman whose certificate expired September 30, 1974. On March 31, 1975, Hoffman reapplied and was recertified by the Florida Real Estate Commission. During the intervening period, Hoffman continued to be registered by the Commission. In late 1974, Jean Hoffman showed David W. Jarrett two lots which Jarrett subsequently offered to purchase. Jarrett gave Hoffman $1,500 as a deposit receipt on this transaction in two checks, one for $300 and the other for $1,200. These checks were received into evidence as Exhibit 2. The contract entered into by Jarrett was received into evidence as Exhibit 1. Because Hoffman was not present at the hearing, Jarrett identified a picture of Hoffman taken from the files of the Florida Real Estate Commission as the individual who he had known as Hoffman. This picture was received into evidence as Exhibit 4. After entering into this transaction, Jarrett waited some time and when a closing did not take place, attempted to contact Hoffman. He was unable to contact Hoffman and unable to obtain the return of his $1,500. Jarrett also identified a letter from Barbara E. Green, the owner of the property, which he had received in reply to a letter to her concerning this transaction. This letter was received as Exhibit 3, and indicates that Green had rejected the offer. All Jarrett's efforts to obtain return of his money from Hoffman failed and the money and Hoffman have disappeared.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Real Estate Commission revoke the registration of J. C. Hoffman also known as Jean Hoffman. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Charles E. Felix, Esquire Florida Real Estate Commission 400 West Robinson Avenue Orlando, Florida 32801 J. C. Hoffman % Patrick N. O'Keef Dist. Road 5-7837 and N. Hwy 452 Lake Yale Village Leesburg, Florida 32748
