Findings Of Fact By application filed with respondent, Division of Real Estate (Division), on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. In response to question six an the application, petitioner acknowledged that he had been arrested in August 1984 for possession of marijuana, a felony, and burglary and sexual misconduct, both misdemeanors, and ultimately pled guilty to the felony charge of possession of marijuana and the misdemeanor charge of sexual misconduct. After reviewing the application, and securing petitioner's record of arrests, respondent issued proposed agency action in the form of a letter on October 3, 1988, denying the request on the ground petitioner was not "honest, truthful, trustworthy, and of good character" and did not "have a good reputation for fair dealing." The denial prompted petitioner to request a formal hearing. Malloy, who is twenty-eight years old, graduated from Spring Hill College in Mobile, Alabama in February 1983 with a degree in psychology. After graduation, he worked as a recreation director for a residential care facility for emotionally disturbed children in the Mobile area. In August 1984 he was arrested for possession of marijuana after police found marijuana plants growing in his backyard. The charge was a felony under Alabama law. A short time later, one of Malloy's neighbors lodged charges of sexual abuse against him for allegedly making improper advances on her thirteen year old son. A charge of second degree burglary, a felony, was added for Malloy allegedly unlawfully entering the house where the minor resided Upon advice of his attorney, Malloy accepted a negotiated plea offered by the state and pled guilty to the felony charge of possession of marijuana and to a reduced misdemeanor charge of sexual misconduct, and the state agreed to dismiss the burglary charge. After the plea was accepted, Malloy was placed on probation for five years. Except for these offenses, petitioner has never been charged with or convicted of any other crimes. Malloy accepted the above arrangement since he did not wish to go to trial and risk incarceration. He readily acknowledged the presence of marijuana plants in his back yard which he said were for his own consumption and that of some friends. However, he vigorously denied the sexual misconduct and related burglary charges and blamed them on the neighbor who he contended was mentally unstable and vindictive. Since Malloy's plea, he has been on supervised probation which is scheduled to end on January 1, 1990. Under the terms of his probation, Malloy must check in once a month, report his activities to a supervisor and attend counseling sessions. He is currently in the process of requesting an early termination of probation. Malloy left Alabama in early 1985 and worked briefly at a resort in Key West. In late 1985 he began employment with a satellite communications firm in St. Petersburg and was in charge of sales, credit and installations for three area stores. In that capacity, he handled the firm's money and was required to frequently deal with the public. After a brief stint as an assistant store manager with a Sarasota department store, Malloy worked two years as a teller for a Sarasota savings and loan institution where he handled large amounts of cash on a daily basis. It is noteworthy that the bank hired petitioner with the knowledge of his criminal background. Pending the outcome of this proceeding, Malloy is working as an office manager with a Sarasota air-conditioning firm. Malloy now wishes to enter the real estate profession and eventually specialize in appraising. Malloy's honesty, trustworthiness and good reputation were attested to by the branch manager of the bank where Malloy was employed and the owner of the business where he now works. Malloy was described as being honest, reliable and trustworthy. Both had the utmost confidence in entrusting Malloy with handling moneys. Indeed, all positions held by Malloy since 1985 have involved unsupervised responsibilities, the handling of cash and dealings with the public. As such, he has established rehabilitation. There was no evidence to contradict these findings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Garth Arin Malloy for licensure as a real estate salesman be GRANTED. DONE and ORDERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 23rd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5666 Petitioner: 1. Covered in finding of fact 1. 2-3. Covered in finding of fact 4. 4-6. Covered in finding of fact 2. 7. Rejected as unnecessary. 8-9. Covered in finding of fact 4. 10-11. Covered in finding of fact 3 12-13. Covered in finding of fact 4. 14. Covered in finding of fact 3. 15. Covered in finding of fact 6. 16-32. Covered in finding of fact 7. 33. Rejected as unnecessary. 34. Covered in finding of fact 5. 35. Covered in finding of fact 4. 36. Rejected as being a conclusion of law. 37-38. Covered in finding of fact 7. 39. Rejected as unnecessary. COPIES FURNISHED: Edwin M. Boyer, Esquire 2055 Wood Street, Suite 220 Sarasota, Florida 34237 Manuel E. Oliver, Esquire Room 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the only witness called at the hearing, I make the following findings of fact. Respondent is now and was at all times material hereto a licensed real estate salesman in the state of Florida having been issued license number 0447789 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, c/o Commercial Investment Real Estate, Inc., 1804 Riverview Drive, Post Office Box 3847, Indialantic, Florida 32901. On May 12, 1986, in the United States District Court, Western District of Virginia Roanoke, the Respondent was found guilty of one (1) count of conspiracy to distribute drugs and one (1) count of interstate travel to promote illegal activity in violation of federal law, whereupon the Respondent was sentenced to three (3) years confinement, a $5,000 fine, and three (3) years probation upon release from custody. The Respondent timely notified the Florida Real Estate Commission of the felony convictions. As a result of the foregoing convictions, the Respondent is presently confined to a federal prison. Am appeal of the foregoing convictions is presently pending before a federal appellate court. Respondent's wife, who has not been charged with any violations, is presently employed as a licensed real estate salesperson in Florida. Inasmuch as her last name is the same as Respondent's last name, Respondent is concerned that publication in the FREC newsletter of news regarding discipline imposed on Respondent would have a negative impact on his wife's business reputation.
Recommendation Based on all of the foregoing, it is recommended that the Florida Real Estate Commission enter a final order in this case to the following effect: Finding the Respondent guilty of viola- tions of Section 475.25(1)(f) and (n), Florida Statutes, as charged; Suspending the Respondent's license for a period of five (5) years; Providing that in the event the appeal of Respondent's criminal convictions is successful, the suspension of Respondent's license will be rescinded; and Providing that notice of disciplinary action against Respondent will not be published in the Commission's newsletter until the appeal of Respondent's criminal convictions is final, and then only if that appeal is unsuccessful. DONE AND ENTERED this 18th day of March, 1987, at Tallahassee, Florida. M. M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1987. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. James E. Stivers 31492-083 Post Office 600 Dorm 1 F.P.C. Eglin Eglin AFB, Florida 32542 Harold Huff, Executive Director Division of Real Estate Florida Real Estate Commission 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue in this proceeding is whether the Petitioner meets the qualifications for licensure as a real estate salesman and should be allowed to sit for the examination for licensure administered by the Florida Real Estate Commission. The Commission contends that Petitioner is not eligible for licensure on account of several convictions of criminal offenses. Respondent contends that due to the passage of time and subsequent good conduct, the criminal convictions do not render him ineligible for licensure.
Findings Of Fact The Petitioner is a natural person over eighteen years of age and is a bona fide resident of the State of Florida. Except for issues raised with respect to several criminal convictions, there is no issue as to Petitioner's eligibility to take the examination for licensure as a real estate salesman. On August 20, 1962, Petitioner was convicted in the United States District Court for the Southern District of Florida of the offenses of mail fraud and mail fraud conspiracy. He was sentenced to serve consecutive sentences of eighteen months on each of ten counts of an indictment, making a total of fifteen years. On September 20, 1963, Petitioner was convicted by the United States District Court for the Southern District of Florida of conspiracy to transport stolen securities in foreign commerce and causing stolen securities to be transported in foreign commerce. He was sentenced to three-year and one- year prison terms on two separate counts of an indictment. The sentences were imposed to run concurrently with each other and with the sentence imposed in the earlier mail fraud conviction. These convictions resulted from guilty verdicts entered subsequent to jury trials. Petitioner ultimately served three years in prison as a result of these convictions and was paroled in 1971. On June 26, 1967, Petitioner was convicted in the criminal court of record in Dade County, Florida, of issuing worthless checks. He was placed on probation for a period of five years and ordered to make restitution. On or about May 29, 1981, the Florida Office of Executive Clemency issued a Certificate of Restoration of Civil Rights to the Petitioner. By Order entered July 8, 1981, the Governor and Cabinet of the State of Florida granted specific authority to Petitioner to receive, possess or transport a firearm in commerce. Petitioner has been engaged in various business activities in the Orlando area since 1979. He enjoys a reputation for honesty and integrity among business associates. Since he was released from prison in 1971, Petitioner has lived a law-abiding life. He is active in his church and in various civic activities. It appears that if the Petitioner is licensed as a real estate salesman, he would faithfully and honestly represent clients. Petitioner tends to minimize the role that he played in the activities that led to his criminal convictions. It does appear, however, that Petitioner is generally remorseful, and that he has shown himself capable of living an honest life. More than seventeen years have elapsed since Petitioner engaged in any criminal conduct that resulted in a conviction.
The Issue Whether Respondent has been convicted of a crime which involves moral turpitude or fraudulent or dishonest dealing in violation of subsection 475.25(1)(f), Florida Statutes.
Findings Of Fact Respondent is now and was at all times material to this cause a licensed real estate salesman in the State of Florida having been issued License No. 10931734 in accordance with Chapter 475, Florida Statutes. On August 29, 1986, a two-count information was filed in the Circuit Court in and for Sarasota County, Florida, against respondent and four other individuals. Count I of the information charged a violation of the Racketeer Influenced and Corrupt Organization (RICO) Act. Count II of the information charged conspiracy to violate the RICO Act. Specifically, Count II of the information alleged that respondent, and five other individuals, on a continuing basis from November 14, 1985, through December 21, 1985, "did knowingly, willfully and unlawfully, conspire, combine, confederate or agree together with each other and with other persons . . . to violate the laws of the State of Florida, to wit: The laws prohibiting any person employed by or associated with any enterprise from conducting or participating either directly or indirectly, in the affairs of said enterprise through a pattern or [sic] racketeering activity as prohibited in Florida Statute 895.03(3), in violation of Florida Statute 895.03(4), and it was a part of said conspiracy that the above- named defendants were associated with an enterprise to wit: a group of individuals associated in fact, although not a legal entity, for the purpose of engaging in various criminal activities in violation of Chapter 849 of the Florida Statutes relating to gambling, including but not limited to: bookmaking, (2) unlawful betting, and (3) criminal conspiracy in violation of Florida Statute 895.03(4), to the evil example of all persons in like cases offending and contrary to the statute in such case made and provided against the peace of dignity of the State of Florida." By letter dated March 20, 1986, the respondent advised the Department of Professional Regulation, Division of Real Estate, that she had been arrested on felony charges. On September 10, 1986, respondent entered a plea of nolo contendere to the offense of conspiracy to violate Racketeer Influenced and Corrupt Organization Act, as charged in Count II of the information. Adjudication was withheld, and respondent was placed on probation for two years with a special condition that she cooperate fully with law enforcement. On October 8, 1986, respondent sent a letter to the petitioner stating that she had entered a plea of nolo contendere, "to the charge of `conspiracy to violate RICO' for bookmaking." Respondent stated in the letter, "In short, I was betting on football and basketball games and placing bets with a bookie in Ft. Myers." Respondent's husband, John Flanagan, was named as a co-defendant and co-conspirator in the information. At the hearing, respondent testified that her only role in the betting activity was to take telephone messages for her husband. She explained that when her husband was not home, she would answer the phone and take messages for him from friends wishing to place bets on football games. She would write down the message, i.e., what the bet was and the amount of the bet, and leave the message for her husband. However, this testimony is not entirely consistent with her statement in the letter of October 8, 1986, where she stated that she was betting on football and basketball games and placing bets with a bookie in Ft. Myers. Thus, from respondent's admissions it appears that she was involved with gambling activity by taking bets over the phone, which bets were passed on to her husband, by betting on football and basketball games herself, and by placing bets with a bookie in Ft. Myers. Further, respondent admitted that she pleaded nolo contendere to the charge of conspiracy to violate the RICO act "for bookmaking." Respondent determined to plead nolo contendere to the conspiracy charge, a first degree felony, to protect her family and because she knew adjudication of guilt would be withheld and she would be placed on probation. Respondent also contends that she pleaded nolo contendere to the first degree felony of conspiracy to violate the RICO Act, rather than the underlying third degree felony of bookmaking, because adjudication of guilt could not be withheld under the bookmaking statute. Respondent's husband, John Flanagan, who also pleaded nolo contendere to Count II of the information, is a certified public accountant. When his case was presented to the probable cause panel of the State of Florida Board of Accountancy, the panel decided that there was no moral turpitude or fraud involved in the crime and decided to issue a letter of guidance under a different disciplinary provision. Respondent's arrest and subsequent disposition of the felony charges have not had an adverse-effect on respondent's real estate business. Respondent's friends and associates find her to be honest and of the highest moral integrity.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that respondent has been convicted of a crime involving moral turpitude and imposing an administrative fine of $500.00. DONE and ORDERED this 22nd day of September, 1987, in Tallahassee, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2274 Petitioner's proposed findings of fact: 1. Accepted in #1. 2-3. Accepted in #4. Accepted in #`s 3 and 5. Accepted in #2. Respondent's proposed findings of fact: 1-2. Rejected, not a finding of fact. Accepted in part in #2, remainder rejected as not a finding of fact. Accepted in #7, to the degree it is a finding of fact, not a legal conclusion, which might be considered in mitigation of penalty. Accepted as stated in #8. 6-7. Accepted as stated in #6. 8. Accepted in that there was no finding that a fine was imposed. 9-10. Rejected as not a finding of fact. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation - Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Stacey Lee Flanagan, pro se 3364 Country Oaks Boulevard Bradenton, Florida 34243 Harold Huff, Executive Director Division of Real Estate Florida Real Estate Commission 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Tom Gallagher Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact By an application dated February 19, 1979, Petitioner, Barbara Ann Bisque, applied for registration as a real estate salesman with the Florida Board of Real Estate. Question number 6 on the application asked: "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 that question Petitioner answered "Yes." If a "Yes" answer is provided the applicant was asked to state the details including the outcome in full. She wrote, "forgery-not convicted- probation" and attached an explanation. Her explanation on a separate sheet of paper stated: "To Whom It May Concern, The actual charge was uttering a forged or false instrument. The incident occurred in August of seventy- seven. It involved my sister and I. We were shopping at Burdines and found a credit card in the cosmetic department and attempted to purchase clothes with it. We were observed by security, approached, and later arrested. I went to court and was not convicted but placed on two years probation. I served for eighteen months and was released for good behavior." (Signed) Barbara Ann Bisque Her application failed to disclose that on October 30, 1973, in Broward County Court in Case Numbers 73-33224MM and 73-17493MM she pled nolo contendere to two charges of disorderly conduct. These charges were reduced from initial charges of indecent exposure. She was adjudged guilty and sentenced to a fine and costs. As a result of her failure to disclose her two arrests for indecent exposure and conviction for disorderly conduct, the Respondent Board denied Petitioner's application for registration. Petitioner failed to disclose the two arrests for indecent exposure and her convictions for disorderly conduct due to her mistaken belief that Question number 6 was concerned only with arrests or charges for offenses committed while an adult. It is her recollection that in 1973, at the time of her arrest, she was legally a minor. For this reason, she chose not to disclose those incidents on her application. Her belief, while legally naive, is given credibility by the fact that she did freely disclose her arrest and subsequent probation for forgery.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application as submitted by Barbara Ann Bisque be denied, but without prejudice to her filing a new application to demonstrate that she meets the requisite qualifications for licensure as a real estate salesman and that the Board take such further action on the new application as appropriate. DONE and ENTERED this 4th day of February, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1980. COPIES FURNISHED: Edward F. O'Connor, Esquire 125 Worth Avenue, Suite 308 Palm Beach, Florida 33480 Salvatore A. Carpino, Esquire Staff Attorney Florida Board of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Petitioner is an agency of the State of Florida charged with enforcing the provisions of Chapter 475, Florida Statutes, related to the licensure and the regulation of the practice of real estate brokers and salesmen in the State of Florida. The Respondent is a licensee regulated by the Petitioner pursuant to Chapter 475, Florida Statutes, albeit, holding an inactive license at the present time. Such an inactive licensure status is a sufficient basis for Petitioner's jurisdiction. Boedy v. Department of Professional Regulation, Board of Medical Examiners, 433 So.2d 544, (1st DCA 1983). On or about March 7, 1986, the Respondent was convicted in the Circuit Court in and for Pinellas County, Florida, of the crime of manslaughter and "DUI/manslaughter," for each of which two counts she was sentenced to a six year prison term which sentences were to run concurrently, with a five year probationary period after the sentences of incarceration were served. In March 1986, the Respondent was duly remitted to the custody of the Department of Corrections and incarcerated at the Women's Prison at Lowell, Florida, the hearing site. The Respondent was in a work release status and was about to transfer to a less restrictive custodial situation in Fort Lauderdale in the Department's work release program at the time of the hearing. She will work in this program in the community for a few months before her ultimate release. Her release will come much sooner than the original length of her sentence imposed by the Court because she has earned the maximum amount of "gain-time" and has been a model prisoner, thus not losing any gain time since the first day she was incarcerated. This incident arose on May 23, 1983, in Pinellas County when the Respondent was proceeding down a public roadway in her own motor vehicle after having ingested an indeterminate amount of alcoholic beverages. While she was driving, a deputy sheriff in a Sheriff's Department vehicle approached her from the rear, activated his siren and indicated that he intended apprehending her or at least stopping her car. The deputy's siren startled and distracted the Respondent and in the process of pulling over to the side of the road, which necessitated a lane change, she became involved in the auto accident which ultimately caused the death of Mr. Walter Heuston. She was charged with unlawfully causing the death of Mr. Heuston by the operation of a motor vehicle while under the influence of an intoxicating liquor to an extent as to deprive her of full possession of her normal faculties and, in Count II of the criminal information, by her own act or culpable negligence, in driving a motor vehicle, without intent to murder, inflicting mortal wounds upon Walter Heuston, of which he died. The Respondent, at the hearing and repeatedly in the past, has displayed extreme remorse over this unfortunate turn of events and freely acknowledges her fault in so conducting herself as to cause the death of another. As established by other witnesses, as well as by those, whose letters attesting to her good character were stipulated into evidence, she has used this experience and her time in prison to better herself. She has become quite active in a Christian organization for women and has enrolled in a theological seminary. In her course work with the seminary, she has earned the highest possible grades. Her pre-release counselor, Reverend Randolph, established that she is interested in growing and improving her life and remains very interested in her profession and in helping her community. The Respondent presently works at a community college as a civilian secretarial worker and has an exemplary record. At the correctional institution, she works in orienting inmates and counseling them to help them adjust to prison life and also works as a chaplain's aide. Similarly, Reverend Hubert Parr, the Respondent's minister, established that she is a member of his church and that he has had frequent contact with her in his Bible study teaching at the Lowell Prison. The Respondent has proven to him that she has grown a great deal as a responsible, caring person and is very repentant concerning the incident which resulted in her incarceration. He truly feels she aspires to be a model citizen in the future. He has substantial experience working as a chaplain and counselor for a drug and alcohol rehabilitation center. He is convinced that the Respondent has conquered any alcohol problem she may have had and is convinced she has, and wishes to continue to, change her life for the better. The Respondent established that she had no prior alcohol problems of record and had no traffic citations for driving under the influence or even for speeding before the incident in question. She has conscientiously worked at her studies with the Luther Rice Seminary in Jacksonville and genuinely wants to help other people who may have alcohol or drug problems. She wishes to use her own unfortunate experience to the advantage of others by counseling persons with alcohol problems to help them avoid similar disastrous consequences. She presently works at the Central Florida Community College and has an excellent work record and numerous letters of recommendation. Her work site away from the correctional institution renders drugs and alcohol easily accessible, yet she has steadfastly avoided them and has been involved in no incident involving the purchase or use of alcohol or drugs in the course of her work experience away from the Lowell facility. She is in the honor unit at the Lowell facility, could "walk away" at any time and has chosen not to do so. She is in all respects a model prisoner, is contrite and remorseful concerning the reason for her imprisonment and genuinely appears to be trying to turn that tragic experience into a positive benefit in redirecting the course of her own life and in using that bad experience to help others who may have similar problems. Concerning the charge that she failed to timely inform the Petitioner of her incarceration or her conviction, she established that she wrote the Petitioner in early April 1986 and within thirty days after her conviction but apparently sent the letter to the wrong address in Orlando instead of to the appropriate address in Tallahassee. She never got an answer and during this time was still in the reception facility for a thirty day period during which she was in close custody and confinement. It was, therefore, difficult for her to obtain information about where to write to the Petitioner to inform them of her situation and, because of the emotional stress she was under at the time, she did not immediately write another letter upon failing to get an answer to the first one after a reasonable time. In any event, later that summer, in August 1986, she wrote a second letter to the Petitioner informing it of her situation and inquiring about her licensure status. This was answered by the Board and ultimately resulted in the instant prosecution. The Respondent was sentenced on March 7 and did not arrive at the Lowell Prison with a permanent address until March 21. She wrote the first letter in the second week of April. In view of the Respondent's obvious remorse concerning the unfortunate incident which resulted in her conviction and incarceration and the fact that she obviously wishes to better herself both spiritually and professionally, and has a genuine desire to help others overcome alcohol or drug problems and avoid similar consequences, it cannot be found that the Respondent's conviction of a felony and resultant incarceration is truly representative of her innate character and individual self-worth as that relates to her competence and trustworthiness to practice her profession as a realtor. The undersigned finds no evidence which would indicate that the public in the State of Florida, requiring the services of the Respondent as a realtor in the future, would be in any danger of becoming victims of dishonest, deceitful, fraudulent or similar reprehensible modes of practice by the Respondent. In consideration of the severe penalty the Respondent has already paid and is continuing to pay for the tragedy she is accountable for, it would be unjust to remove her right to practice her chosen means of livelihood through this proceeding.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Florida Real Estate Commission according the Respondent the penalty of a written reprimand. DONE and ORDERED this 31st day of August 1987, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1987. COPIES FURNISHED: Arthur R. Shell, Jr., Esquire Senior Attorney Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 June E. Dupee c/o Salvation Army 14 Northwest 14th Avenue Fort Lauderdale, Florida 33311 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the registration of Respondent Bernard C. Moskowitz should be suspended or revoked for having been guilty of state and federal crimes involving moral turpitude and fraudulent and dishonest dealing more particularly stated in the Administrative Complaint filed by the Florida Real Estate Commission on August 27, 1976. At the commencement of the hearing, Respondent was advised by the Hearing Officer as to his rights as a Respondent to present evidence, cross-examine witnesses and testify in his own behalf if he so desired. He was also advised as to his right to have counsel represent him at his own expense. He acknowledged his understanding of rights and elected to proceed in his own behalf.
Findings Of Fact Respondent is a registered real estate salesman, Certificate No. 36745, and was so registered at all times alleged in the Complaint. (Petitioner's Exhibit 1). On December 17, 1974, Respondent, in case styled United States of America v. Bernard Moskowitz, Docket No. 74-570-CR-PF, United States District Court for the Southern District of Florida, was found guilty on two counts of knowingly and intentionally distributing a controlled substance, to wit: dilaudid, a schedule II narcotic controlled substance, in violation of Title 21, United States Code, Section 841(a)(1). The two offenses were committed on or about October 13 and October 18, 1972, in Dade County, Florida. On February 28, 1975, Respondent was sentenced and thereafter was confined in the Federal Prison at Eglin Air Force Base, Florida, from November 14, 1975 to March 26, 1976. (Petitioner's Composite Exhibit 2). On July 11, 1975, after entering a plea of nolo contendere, Respondent was adjudged guilty of the criminal offense of extortion in Case No. 73-8508, State of Florida vs. Bernard Carl Moskowitz, in the Circuit Court of the Eleventh Judicial Circuit, Dade County, Florida, and was sentenced to be imprisoned by confinement at hard labor in the Dade County Jail for a term of twelve (12) months, to run concurrently with the sentence imposed by the United States District Court, Southern District of Florida in Case No. 74-570-CR-PF, provided that after having served six months of that sentence, the remaining six months to be stayed and withheld and Respondent to be placed on probation and released into the custody of the Florida Probation and Parole Commission for a period of two years. (Petitioner's Exhibit 3). Respondent testified as a witness at the hearing and presented various documents bearing upon the merits of his criminal trials. Respondent is currently on both federal and state probation. (Testimony of Respondent, Respondent's Exhibit 1 through 8).
Recommendation That the registration of Respondent Bernard C. Moskowitz as a real estate salesman be suspended for a period of one year under the authority of Section 475.25(1)(e), Florida Statutes. DONE and ENTERED this 31st day of December, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1976.
The Issue The issue is whether Mr. Mirvis is eligible to receive a Florida teacher's certificate.
Findings Of Fact Laurence Mirvis completed an application for a Florida teacher's certificate on January 23, 1989, which the Department received on January 27, 1989. In 1981, Mr. Mirvis was charged in the circuit court with carrying a concealed weapon by the state attorney in Martin County, Florida, in the case styled State of Florida v. Larry Mirvis, Case No. 80-751CF. The matter was refiled as a misdemeanor prosecution in the county court, as State of Florida v. Mirvis, Case No. 80-19232MM. Mr. Mirvis was found guilty by the county judge based upon plea of guilty he entered after discussing the matter with his attorney, was sentenced to 60 days in the county jail, one year of nonreporting probation conditioned upon leaving Martin County. A little over three years later, on January 22, 1984, Mr. Mirvis was arrested in Delray Beach, Florida for threatening an employee at a convenience store who had followed Mr. Mirvis into the parking lot because he believed Mr. Mirvis had taken items from the store without paying for them. In the parking lot Mr. Mirvis had pointed a handgun at the employee and then fled. On August 7, 1985, Mr. Mirvis was adjudged guilty of carrying a concealed firearm, a third degree felony, in violation of Section 790.01(2), Florida Statutes, upon entering a plea of guilty. He was sentenced to time served.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Commissioner of Education denying the application of Laurence Mirvis for a Florida teacher's certificate. DONE and ENTERED this 12th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 12th day of February, 1991. Copies furnished: Robert J. Boyd, Esquire 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Laurence Mirvis Post Office Box 6821 Delray Beach, Florida 33484 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, #301 Tallahassee, Florida 32399 Martin Schaap, Administrator Professional Practices Services 325 West Gaines Street, Room 352 Tallahassee, Florida 32399 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The parties stipulated on the record that the issues for determination in this proceeding are: Whether the crime of manslaughter for which Ms. Antel was convicted is a crime of moral turpitude, and Whether sufficient rehabilitation has taken place since the crime was committed.
Findings Of Fact Petitioner, Donna Antel, submitted her application for license as a real estate salesperson on August 1, 1966. In that application she revealed information regarding conviction of a crime. In December 1982, Donna Antel moved to Florida with her husband, to start a new life after a series of business, financial and personal problems in New York State. Shortly afterwards, it became obvious that the problems also moved with them--the ex-wife began harassing them and the husband's children came to stay, causing severe financial and emotional stress on the relationship. In August 1983, Ms. Antel sat in the bedroom with a rifle, contemplating suicide. He husband walked in, and she shot him. She was tried for 1st degree murder. On December 14, 1984, she was convicted of manslaughter in a jury trial, in Brevard County, Florida. Ms. Antel was sentenced to ten years in prison; she served eleven months in prison and six months on a work release program. On May 6, 1986, she was released on parole. After release from prison, Ms. Antel received psychological counseling and has completed her course of therapy. She has committed no parole violations and is due to be fully released sometime in 1993. For the six months proceeding the final hearing Ms. Antel was employed as an assistant property manager.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered denying Petitioner's application for licensure. DONE and RECOMMENDED this 20th day of July, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987. APPENDIX The following constitute my specific rulings on the findings of fact proposed by the Respondent. Adopted in Paragraph #1. Adopted in Paragraph #1. Adopted in Paragraph #3 Rejected as unnecessary. Adopted in paragraph #2. Adopted in paragraph #2 Rejected as cumulative and unnecessary. Adopted in paragraph #3. Adopted in paragraph #3. Petitioner's post-hearing submittals were filed on July 15, 1987, well after the established deadline. COPIES FURNISHED: Harold Huff Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Vincent W. Howard, Jr., Esquire Howard & Reyes, Charter 210 North Park Avenue Sanford, Florida 32771 Lawrence S. Gendzier, Esquire Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801
The Issue Whether the petitioner meets the qualifications for licensure as a real estate salesman.
Findings Of Fact On July 6, 1984, the petitioner filed an application for licensure as a real estate salesman with the Department of Professional Regulations Division of Real Estate. The petitioner responded in the affirmative to question 6, which asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere. . .", and set forth the details as follows: "Attempted Possession of Stolen Property" (New York) Bronx Date of Probation May 29, 1984 Date of Conviction November 16, 1983 Probation Officer Ms. English 212-590-3101 By letter dated September 24, 1984, and undated letter filed October 31, 1984, the petitioner was informed that the Commission had denied his application for licensure. In pertinent part the letter stated as follows. "The power of the Commission to review and deny applications is based upon Sections 475.17 and 475.25, Florida Statutes. Subsection 475.17(1) calls for the applicant to be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. . ." The reason for the Commission's action is based on your answer to Question(s) 6 of the licensing application and/or your criminal record according to the appropriate law enforcement agency. The petitioner owned a secondhand jewelry business in New York, similar to a pawn shop. He dealt with people all over the world, mainly wealthy people, and they sold him antiques and jewelry. He informed anyone coming in his store that he did not buy stolen goods and had a sign on his wall so stating. One gentleman, that had been a client for approximately three years, came into the store about every six or seven months to sell something. The last time this individual came into the store, about four weeks before the petitioner closed his business and moved to Florida, the individual implied that the gold he was selling might not belong to him. However, petitioner wasn't paying particular attention at that time to what the individual was saying since the petitioner had had previous dealings with him. After moving to Florida, in February of 1983, Petitioner was notified that he had been indicted in Bronx, New York. He flew back to New York and turned himself into the authorities. He discovered that the gentleman with whom he had been dealing for three years was a New York police officer and that their conversations had been taped. The tape revealed that during the last transaction the officer had implied that the gold he was selling did not belong to him. Petitioner pleaded guilty to attempted possession of stolen property, a felony, and was placed on probation for five years beginning in December, 1983. Petitioner has had a very good record while on probation. The petitioner held a real estate license in New York for over 10 years which has now expired. The license was never suspended or revoked and petitioner never had any other type of problem while in the real estate business. Since petitioner has been in Florida he has held responsible jobs handling large amounts of money. His employers, friends and coworkers have been impressed with his reliability, integrity and honesty. Petitioner presented sufficient evidence to show that since living in Florida he has been honest, truthful, trustworthy, of good character, and has a good reputation for fair dealing. Nevertheless, respondent pleaded guilty to the crime of attempted possession of stolen property and is still on probation for that crime. Although an isolated unlawful act or criminal conviction in the past does not necessarily mean that an individual is presently dishonest, untrustworthy or of bad character, 1/ it must be concluded that when an individual is presently on probation for a crime involving dishonest dealing, the unlawful act or conviction is not so remote that it can be deemed an isolated incident in the past. Because Petitioner is still on probation for a crime that involves dishonesty and a lack of trustworthiness, petitioner has not established that he meets the requirements of Section 474.17(1)(a), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that petitioner's application for licensure be DENIED. DONE and ENTERED this 12th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 12th day of December, 1985.
