The Issue The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes, and Florida Administrative Code Rule 61J2-2.027(2), and, if so, what discipline should be imposed.
Findings Of Fact Respondent is 58 years old. He is employed full-time as a real estate sales associate. Respondent holds an active real estate sales associate license. His license number is SL706350. The license was issued to Respondent based upon his sworn application for licensure submitted on or about March 14, 2001. Question No. 9 on the license application asked whether Respondent had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if [he] received a withhold of adjudication.” The following explanation is provided as part of the question: This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering “NO.” (Emphasis supplied) Immediately following Question No. 9 is the following statement in all capital letters: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE REVOCATION OF YOUR LICENSE OR THE DENIAL OF A REAL ESTATE LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR THE DIVISION OF REAL ESTATE. Respondent checked the box marked “NO” for Question No. 9 on the application that he submitted. Respondent’s negative answer to Question No. 9 was a material misstatement of his criminal record. On March 27, 1972, Respondent pled guilty to attempted robbery in the third degree in the Erie County Court in New York. The offense was a felony. On May 5, 1972, Respondent was sentenced to five years of probation for that offense. Respondent’s probation was revoked on January 14, 1974, and he was sentenced to “the care and custody of the NY State Narcotic Addiction Control Commission for an indefinite period of 60 months.” The latter sentence ran concurrently with a sentence imposed for another offense, the substance of which is not reflected in the record. On August 3, 1992, the Erie County Court issued a Certificate of Relief From Disabilities to Respondent, which relieved him of “all disabilities and bars to employment, excluding the right to be eligible for public office.” The certificate expressly states that it “shall NOT be deemed nor construed to be a pardon,” and it is limited to the “crime or offense specified [t]herein.” The Certificate of Relief From Disabilities makes no mention of expungement or sealing of the records related to the enumerated offense. The only offense enumerated in the Certificate of Relief From Disabilities is the third degree attempted robbery conviction with a sentence date of May 5, 1972. No other offenses are mentioned. On February 18, 1993, the New York Executive Department, Board of Parole, issued a Certificate of Good Conduct to Respondent. The certificate referenced three offenses: the third degree attempted robbery conviction discussed above; a second degree robbery conviction with a sentence date of May 8, 1975; and a federal distribution of heroine conviction with a sentence date of May 1, 1978. The purpose of the Certificate of Good Conduct was to “remove all legal bars and disabilities to employment, license and privilege except those pertaining to firearms . . . and except the right to be eligible for public office.” The certificate states that it “shall be considered permanent.” The Certificate of Good Conduct makes no mention of expungement or sealing of the records related to the enumerated offenses. Respondent testified that his negative answer to Question No. 9 was based upon his understanding of the legal effect of the Certificate of Relief from Disabilities and the Certificate of Good Conduct. Specifically, Respondent testified that although he understood that the certificates did not “remove” his criminal history or expunge his records, it was his understanding that the certificates provided him a “safe harbor” to answer “no” to Question No. 9 because all legal bars to employment had been removed by the certificates. Respondent’s understanding regarding the legal effect of the certificates and his obligation to disclose his prior offenses based upon the certificates was based, in part, on advice he received from an attorney in New York. Respondent knew that the Department would learn of his criminal history through the background check based upon the fingerprint card that he submitted with his license application, and he credibly testified that he did not intend to mislead the Department regarding his criminal history through his negative answer to Question No. 9. Respondent was unaware at the time he submitted his license application that the Department and/or the Florida Real Estate Commission (Commission) processed applications in which no criminal history was disclosed differently than applications in which a criminal history is disclosed.2 Respondent’s understanding regarding the legal effect of the certificates was erroneous. Respondent acknowledged as much in his testimony at the final hearing (Tr. 54) and in his PRO (at ¶29). The record does not establish precise legal effect of the certificates,3 but it is inferred that the certificates restore the civil rights that Respondent lost due to his felony convictions. It is also inferred that the reason that the Certificate of Good Conduct does not mention Respondent’s misdemeanor offenses (See Endnote 5) even though it was issued after those offenses is because misdemeanor convictions typically do not result is the loss of civil rights as is the case with felony convictions.4 Neither of the certificates expunge or seal any of Respondent’s criminal records and, contrary to his understanding at the time, the certificates did not excuse Respondent from disclosing his criminal offenses in response to Question No. 9 on the license application. The evidence clearly and convincingly establishes that Respondent was convicted of third degree attempted robbery, a felony, in 1972; that the offense was not sealed or expunged; and that Respondent failed to disclose that conviction on his license application when he answered “no” to Question No. 9.5 The evidence does not clearly and convincingly establish that Respondent intentionally misrepresented or fraudulently concealed his criminal history from the Department by answering “no” to Question No. 9.6 To contrary, the evidence establishes that Respondent’s negative answer to Question No. 9 was based upon his good faith, albeit erroneous belief, that he was not required to disclose his prior criminal offenses in light of the Certificate of Relief from Disabilities and/or the Certificate of Good Conduct. It has been 34 years since Respondent’s third degree attempted robbery conviction, which is the basis of the Administrative Complaint. It has been more than 18 years since Respondent’s last criminal offense, which was a misdemeanor petit larceny offense. All of Respondent’s criminal offenses occurred in the state of New York. He has remained out of trouble with the law since he came to Florida in 2000. Respondent has not been the subject of any disciplinary action, other than this proceeding, since receiving his license. Respondent did not present the testimony of any character witnesses, but he credibly testified that he has completely turned his life around since the time of his criminal offenses in New York. Respondent served in the U.S. Air Force Security Service in Viet Nam. He was honorably discharged. Respondent was licensed as a mental health counselor in New York and Virginia prior to coming to Florida and obtaining his real estate sales associate license. Respondent testified that he was required to disclose his criminal background and undergo a background check in order to obtain those licenses; that he did not disclose his criminal background on the license applications based upon his understanding of the certificates described above; that his criminal background was not an issue to the licensing agencies in New York and Virginia, even though it was not disclosed on his license applications; and that this experience (along with the advice he received from the attorney in New York) led him to believe that his criminal records were sealed and need not be disclosed. Respondent offered no evidence to corroborate this self-serving testimony, and it is given very little weight because it is unknown how, if at all, the disclosure requirements and licensure regimes for mental health counselors in New York and Virginia compare with the disclosure requirements and licensure regime for real estate sales associates in Florida.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order that: finds Respondent not guilty of violating Section 475.25(1)(m), Florida Statutes (Count I of the Administrative Complaint); finds Respondent guilty of violating Florida Administrative Code Rule 61J2-2.027(2) and, hence, Section 475.25(1)(e), Florida Statutes (Count II of the Administrative Complaint); imposes an administrative fine of $1,000; suspends Respondent’s license for 30 days; places Respondent on probation for one year after the end of the suspension period; and imposes the costs related to the investigation and prosecution of this case, excluding costs associated with an attorney’s time. DONE AND ENTERED this 21st day of December, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st of December, 2006.
Findings Of Fact Respondent Jerry Lee Milotakis is a licensed real estate salesman having been issued license number 0380231. On August 10, 1981, Respondent filed an application for licensure as a real estate salesman with the Department of Professional Regulation, Florida Real Estate Commission (formerly known as the Board of Real Estate). In signing said application, Respondent represented that all answers and statements were true and correct and as complete as his knowledge, information and records permitted without any evasions or mental reservations whatsoever. Question numbered six of the application inquires as follows: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any muni cipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the outcome in full: Respondent answered question numbered six by stating: "Yes--traffic offenses." Respondent was arrested on November 22, 1978, for possession of cocaine, possession of narcotic equipment, and for loitering and prowling. No action was filed by the State Attorney's office. Respondent was arrested on July 22, 1979, for barbituate possession and dangerous drugs possession. No action was filed by the State Attorney's office. Respondent was arrested on January 31, 1980, for trespassing after warning. He was convicted of this offense. On April 11, 1981, Respondent was arrested for assault and battery. He was tried by a jury and was acquitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that default be entered against Respondent Jerry Lee Milotakis and that a final order be entered finding the Respondent guilty as charged in the Administrative Complaint and revoking his real estate salesman license number 0380231. DONE and RECOMMENDED this 6th day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Mr. Jerry Lee Milotakis 520 NE 82nd Terrace, #5 Miami Shores, Florida 33138 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 5th day of December, 1989.
Findings Of Fact The Respondent, Charles L. White, is registered with the Real Estate Commission as a Real Estate Salesman. Copies of the Administrative Complaint filed by the Commission against the Respondent were forwarded to the Respondent at the address he most recently provided the Commission. Copies of the Complaint were returned to the Commission, and copies of the Notice of Hearing forwarded to the Respondent have likewise been returned. Efforts to locate the Respondent have been unsuccessful. A forty-count indictment was issued by the Grand Jury of the United States District Court in the Middle District of Florida, Tampa Division, against the Respondent, Charles L. White, and five other persons. On February 5, 1977, a jury found the Respondent guilty of all counts of the indictment in which he was charged. On June 3, 1977, he was adjudicated guilty, and sentenced to serve eighteen months in the Federal Penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of two years. The crimes of which the Respondent was convicted involve dishonest dealing in connection with real estate transactions, and include fraud, fraudulent use of the mail, and conspiracy to commit violations of Federal law.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That a final order be entered finding the Respondent guilty of the charges alleged in the Administrative Complaint, and suspending the Respondent's registration as a real estate salesman for a period of two years. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of June 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Mr. Charles L. White D-30 Sierra Apartments Stuart, Florida 33494 Mr. Charles L. White c/o County Realty & Investments Stuart, Florida 33494
Findings Of Fact The Respondent is a licensed real estate salesman, having been issued license number 0073256 authorizing his practice in such a capacity in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 475, Florida Statutes, for realtors in the State of Florida. From approximately April 16, 1977, through November 17, 1977, the Respondent, acting in the capacity of a real estate salesman, was employed by a broker by the name of Irwin Kane and Wintex Realty Corporation of Miami, Florida. That entity with Broker Kane was involved in the advertisement, promotion and sale of parcels of unimproved land in west Texas. The Respondent's duties involved making long-distance telephone calls to prospective purchasers of that land (in Cochran County, Texas), attempting to induce them to buy one or more parcels. In the course of this telephone sales campaign, in which the Respondent participated with approximately 20 salesmen making such phone calls, the Respondent used a script prepared for him by Irwin Kane, his employing broker. The script, in general, extolled the attributes of the unimproved property in an arid region of west Texas, representing that the land possessed favorable climatic conditions, water supply and soil conditions for agricultural purposes and was near property in which oil companies were interested. The Respondent contacted a potential buyer by phone who lived in Wisconsin and attempted to persuade the buyer to purchase a parcel of the property through use of the prepared "script" given him by his broker. That potential customer apparently became suspicious of the sales method, manner or assurances given by phone and ultimately was instrumental, along with the United State Attorney, in the filing of an indictment in the United States District Court for the Eastern District of Wisconsin, charging the Respondent (along with his broker, principals of the corporation and other salesmen) with the use of wire communication in furtherance of a scheme to defraud potential purchasers of real estate in violation of Title 18, United States Code, Section 1343. In that proceeding, the Respondent initially professed his lack of knowledge of the truth or falsity of the representations made in the prepared script his broker gave him and required him to use concerning the attributes of the west Texas land involved. Due in part to a dearth of financial resources to devote to litigation, the Respondent ultimately pled nolo contendere on November 7, 1978, to the charge involving using wire communication in a scheme to defraud. He was ultimately found guilty and was placed on probation for three years, with imposition of a sentence of imprisonment being suspended by the court. The Respondent had no part in the preparation of any written materials or "script" which he employed in making the telephone conversation and representations describing the supposed attributes of the property he was attempting to market on behalf of his employer, Broker Irwin Kane and Wintex Realty Corporation. That script was prepared by his broker or others and the Respondent read or consulted from it as he was communicating with prospective purchasers, but had no actual knowledge of its truthfulness or falsity with regard to the representations contained therein. He was shown to have made no representation or verbal communication which he knew to be false when he made it. The Respondent has been the subject of a disciplinary proceeding involving the same factual transaction in the past which culminated in a final order dismissing that administrative complaint. 1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is RECOMMENDED: That the Respondent, Ed Rich, be found guilty of a violation of Section 475.25(i)(f), Florida Statutes, and that the penalty of a two (2) year suspension of licensure be imposed. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 31st day of October, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallendale, Florida 33009 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The Petitioner's application for licensure as a real estate salesman was denied by the Board of Real Estate. By letter dated December 17, 1981, the Petitioner was advised that the Board's decision was based on the Petitioner's disclosure in his application that he had been arrested for a criminal offense, and his criminal record according to appropriate law enforcement agencies. The Petitioner challenged this decision of the Board by requesting an administrative hearing. The issue to be determined is whether the Petitioner meets the eligibility requirements for licensure as a real estate salesman. The Petitioner testified in his own be half and presented three other witnesses in support of his contention that he meets all eligibility requirements. These witnesses were the Petitioner's mother who is a licensed real estate broker, and two local businessmen who know the Petitioner, his work record, and his reputation in the community. The Board of Real Estate did not present any witnesses, but did offer in evidence the Petitioner's application and related papers, together with its denial letter, as a composite exhibit.
Findings Of Fact The Petitioner, Mark Bruck, is 20 years of age. In 1980, when he was 18, he was arrested and charged with grand theft auto and robbery. The Petitioner had been drinking with another boy. They went to an abandoned area in a van belonging to a third boy, took the van, and left the owner of the van there. As a result of this single occurrence, the Petitioner and his friend were arrested, and the Petitioner was charged with grand theft auto and robbery. The robbery charge was added to cover the articles of personal property inside the van that were taken with the van. The Petitioner's friend was permitted to enlist in the Marine Corps, and was not charged. The van was returned to its owner, and the Petitioner was permitted to enter a pretrial intervention program own condition that full restitution be made for the personal property and damage to the van. The Petitioner and his friend each paid approximately $1,700 in full restitution for the van and its contents. The Petitioner remained on this pretrial intervention program for a period of 18 months. Subsequently, the Petitioner was out with some other friends who stopped at a construction site and took several pieces of two-by-four lumber. Although the Petitioner did not leave the vehicle, and was not engaged in taking the lumber, he was arrested along with his friends for petty theft. Because of the intercession of his counsellor in the pretrial intervention program, the Petitioner was not charged with anything as a result of this incident. Previously, before he was 18 years old, the Petitioner had been charged with driving while intoxicated. However, on his application and in his answers to interrogatories propounded by counsel for the Board, the Petitioner only disclosed the one arrest for grand theft auto. The Petitioner explains this by stating that he actually had no recollection of the petty theft charge when answering the interrogatories and completing the application, and that he did not feel that the DWI charge was relevant. Based upon the observed candor and demeanor of the Petitioner, and the absence of any contradictory evidence, it is found as a fact that the Petitioner made as complete a disclosure of his arrest record as his recollection permitted without the advice of counsel. The Petitioner's completion of the pretrial intervention program removed him from the jurisdiction of the court for the grand theft auto charge and for the robbery charge. In approximately the year 1983 the Petitioner may petition the court to seal the record of these offenses. Now the Petitioner seeks to become licensed to sell real estate, and work in his mothers realty office. He has lived in Florida for all of his life. He has been working as a painter, then as a painting contractor, for approximately the past two years. In this work he receives money deposits from customers on jobs that are not yet begun, or are begun and not yet finished, and there has been no difficulty or dispute with his customers concerning these deposits. The Petitioner has been extended credit for sums up to $2,000, and he has a good reputation in the community. Two local businessmen, as a sample, would not hesitate to entrust funds to the Petitioner in connection with real estate purchases. Finally, with reference to his knowledge and capability to engage in real estate sales, the Petitioner achieved a score of 97 on the licensure examination. Presently, the Petitioner has matured and has a different outlook on life than he had in the past.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Real Estate grant the application of Mark Bruck for a real estate salesman's license. THIS RECOMMENDED ORDER entered on this 16th day of April, 1982. WILLIAM B. THOMAS, 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 16th day of April, 1982. COPIES FURNISHED: Mark Bruck, in pro per 11101 Royal Palm Boulevard Coral Springs, Florida 33065 Jeffrey A. Miller, Esquire Assistant Attorney General The Capitol, Room 1601 Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shornstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact On November 2, 1977, Marin completed the application for registration as a real estate salesman and forwarded it to the FREC. The application was received December 27, 1977. The application contains the following question. 6. 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 parolled? Marin answered the question with the word "No". However, the evidence shows that Marin was arrested December 31, 1974, with the crime of grand larceny which charge was reduced to petty larceny. It was Marin's understanding that his arrest record had been expunged by an attorney hired for that purpose when, in fact, it had not. It was for this reason that Marin answered the foregoing question in the negative.
The Issue At issue in this proceeding is whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the "Department"), is a state government licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Maureen Teresa Mobley, is a licensed real estate salesperson in the State of Florida, having been issued license number 0647773. On or about January 22, 1997, Respondent filed an application with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: 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. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question 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. Respondent answered item 9 by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On March 3, 1997, Respondent passed the salesperson examination and was issued license number 0647773. From March 15, 1997, through April 7, 1997, Respondent was an inactive salesperson. From April 8, 1997, through the present, Respondent has been an active salesperson associated with Betty K. Woolridge, an individual broker trading as B. K. Woolridge and Associates, currently in Tampa, Florida. Steve Pence, Investigative Supervisor for the Department, investigated Respondent’s criminal history. He discovered that Respondent had "a problem" with a worthless check charge. Mr. Pence obtained a Certificate of Disposition from the Clerk of the Circuit Court for Hillsborough County, Florida. The Certificate indicated that on November 4, 1992, Respondent entered a plea of nolo contendere to a misdemeanor charge of obtaining property with a worthless check, an offense that occurred on July 25, 1991. The Certificate further indicates that adjudication was withheld. After Mr. Pence concluded his investigation, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid criminal disposition, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Florida Statutes" and sought to take disciplinary action against her license. According to the complaint, the disciplinary action sought . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. . . . At the hearing, Respondent testified that six or seven years ago, she wrote a check for $19.00 that was not cleared at her bank. She had moved during this period, and for some reason the notification did not reach her. When she found out the check had not been paid, she went directly to the intended payee and made the payment. A year later, she was stopped for a minor traffic violation and was arrested on an outstanding warrant for her arrest on the worthless check charge. At the time, she thought the matter had been taken care of and had no idea there was warrant out for her arrest. Respondent testified that she went before the judge, who noted that she had made good on the check more than a year before her arrest. Respondent admitted pleading no contest to the charge. However, Respondent’s understanding of "adjudication withheld" was that the judge had dismissed the charge, provided she pay the court costs. She never saw the Certificate of Disposition until Mr. Pence brought it to her attention several years later. Respondent's explanation for her failure to disclose the worthless check charge on her application is credited. It is found that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing her application. In so finding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter was reasonable, given the passage of time since the events in question, the minor nature of the underlying charge, and the fact that the judge acknowledged she had long since made good on the $19.00 check at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1999. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Leonard H. Johnson, Esquire Schrader, Johnson, Auvil and Brock, P.A. Post Office Box 2337 37837 Meridian Avenue Dade City, Florida 33526-2337 William Woodyard Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32302-1900
Findings Of Fact Based upon the documentary evidence received, the testimony of Respondent and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed herein on September 28, 1981, Petitioner, Board of Real Estate, Department of Professional Regulation, seeks to suspend, revoke or take other disciplinary action against the Respondent as a licensee and against his license as a real estate broker/salesman under the laws of the State of Florida. Respondent is a real estate broker/salesman and has been issued License No. 0315273 by Petitioner. On June 9, 1981, Respondent was charged by the State Attorney of the Seventeenth Judicial Circuit of Florida, with violations of Florida Statutes Subsection 812.014(1)(b), and Florida Statutes subsection 812.014(2)(b), criminal theft and second degree grand theft, respectively, to wit: that the Respondent did unlawfully use, or endeavor to use the property of Rus Realty, Inc. (his former employer), an IBM typewriter, of a value in excess of one- hundred dollars ($100.00), with the intent to appropriate the property to his own use or to the use of any person not entitled thereto, knowing or having reason to know said property was stolen. (Petitioner's Composite Exhibit No. 1) On April 22, 1981, Respondent appeared in the Circuit Court, in and for the Seventeenth Judicial Circuit, in and for Broward County, Florida, and entered a plea of nolo contendere to the offense of grand theft and it was ordered and adjudged that the adjudication of guilt and imposition of sentence would be withheld and Respondent was placed on probation for a period of two (2) years. (Petitioner's Composite Exhibit No. 1) Respondent admits to the fact that he entered a nolo contendere plea and that he was placed on probation for a period of two (2) years. However, he testified that he, while formerly employed as a salesman with Rus Realty, Inc., purchased a typewriter from a handyman who was working for Rus Realty, Inc., Tomm Marty, for which he paid one hundred fifty dollars ($150.00) cash for an IBM selective typewriter. (Respondent's late-filed Exhibit No. 1) In mitigation., Respondent, while admitting to the above facts, offered that he had learned a lesson by his involvement in the above purchase of the referenced typewriter. Respondent also related the fact that he had, in addition to losing the money for the purchase of the above typewriter, expended substantial legal fees in an effort to resolve the criminal and administrative charges surrounding the above-referred incident. Respondent learned a lesson by his involvement in the above transaction and has vowed to never again be involved in any questionable acts and/or
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent's broker/salesman License No. 0315273 be suspended for a period of thirty (30) days from the date of the Petitioner's final order herein 2/ . RECOMMENDED this 21st day of July, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 21st day of July, 1982.
Findings Of Fact According to petitioner's uncontroverted testimony, he signed the notarized application for licensure as a real estate salesman, dated March 30, 1983, and gave the otherwise blank form, along with a separate piece of paper on which he had written answers to questions appearing on the form, to an employee of a real estate school he attended. The form was to be completed and mailed without his seeing it again; this was customary, he explained. On the separate piece of paper, he wrote answers to every question but number six, which asks: 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? Respondent's Exhibit No. 10. An anonymous typist supplied the word "no," and typed "NA" in the blank following the instructions, "If yes, state details including the outcome in full." Respondent's Exhibit No. 10. In fact, petitioner was arrested on January 29, 1971, and subsequently convicted for failure to appear in court on traffic charges in Pensacola. On October 28, 1976, petitioner was arrested on bad check charges. He pleaded guilty and was convicted on two counts on November 12, 1976. Respondent's Exhibit No. 1. On January 10, 1977, petitioner was convicted of seven additional counts of "worthless checks." Respondent's Exhibit No. 2. Later the same month, also in Pensacola, he was adjudicated guilty of another such offense. Respondent's Exhibit No. 3. Petitioner's next brush with the law was his apprehension and, in Pensacola, on May 11, 1978, conviction for indecent exposure. Respondent's Exhibit No. 4. On October 10, 1978, petitioner failed to appear for a trial scheduled on still another bad check charge. As a result, he was adjudicated guilty of contempt of the County Court of Escambia County. Respondent's Exhibit No. 5. At the hearing in the present proceedings, he first testified that he had not been adjudicated guilty of this charge, then said that this conviction was reversed on appeal. In giving this second version of events, petitioner recounted a highly improbable appellate hearing. He described in detail being present at oral argument on the appeal before a panel of three circuit judges, whom he named, and reported that his lawyer argued for reversal against the county judge who appeared in person to argue for affirmance of the contempt conviction. On April 9, 1979, petitioner was convicted of five counts of making and utilizing forged instruments. Respondent's Exhibit No. 7. These instruments purported to be checks drawn on his grandmother's account. Probation imposed on account of earlier charges was revoked at the same time. In addition, he was adjudicated guilty of writing numerous bad checks. Respondent's Exhibit 9. On this as on other occasions, he spent time in jail. He never spent more than four months in jail at one stretch, however. He was convicted in Pensacola on May 20, 1981, of writing two more checks against insufficient funds, each for $500. Petitioner claimed to be current on his child support payments and testified that he thinks he is honest and honorable. Before counsel for respondent produced the court records at hearing, petitioner, while under oath, misrepresented his criminal record in various respects. Petitioner's civil rights, except for the right to bear arms, were restored administratively on September 23, 1982. The second time he applied for licensure as a real estate salesman, petitioner answered question six more candidly. Both parties made posthearing submissions. Proposed findings of fact have been considered and adopted, in substance, for the most part. Proposed fact findings have been rejected where unsupported by the evidence, immaterial, subordinate or cumulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure as a real estate salesman. DONE and ENTERED this 8th day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 8th day of December, 1983. COPIES FURNISHED: Lawrence S. Gendzier, Esquire Assistant Attorney General Room 212, 400 West Robinson Street Orlando, Florida 32801 Douglas Michael Burleson Post Office Box 18045 Pensacola, Florida 32523 Randy Schwartz Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
