Findings Of Fact Jerry Ross Smart was a registered real estate broker with the Florida Real Estate Commission prior to the revocation of his registration by final order entered May 23, 1977. The revocation was invoked pursuant to a multiple count disciplinary complaint under Section 475.25, Florida Statutes, involving the Petitioner's failure to escrow funds upon his receipt of them and failure to properly account for those funds, including co-mingling them with his personal funds. The Petitioner's proscribed course of conduct in the transaction which ultimately resulted in his license revocation also lead to criminal prosecution for attempted grand larceny. The Petitioner pled no contest to the criminal charges and was found guilty of attempted larceny, but adjudication was withheld and he was placed upon probation for one year and ordered to make restitution of $5,000. The sentence was imposed on June 29, 1976, almost five years ago. The Petitioner successfully completed his probationary period and made restitution within the time period required by borrowing the required funds from a bank which loan has subsequently also been repaid. He was terminated from probation on June 4, 1977 just prior to his license revocation by the Florida Real Estate Commission. Since the revocation of his real estate broker's license, the Petitioner has been, of course, unable to practice his profession and has had difficulty finding other steady employment due to public knowledge of his criminal conviction, with the result that his and his family's financial security has never since been stabilized or firmly assured. Nevertheless, the Petitioner has steadfastly strived at numerous jobs in an effort to support his family of seven and to provide several of his five daughters with a college education. These jobs included employment as a salesman for a radio station, a traveling salesman for a tool company, a traveling salesman for a chemical company, and a manager for a real estate developer. For approximately the last two years the Petitioner has worked at a rather grueling job as a newspaper delivery man for the Orlando Sentinel Star. He has been required by this employment to arise at 2:00 a.m. seven days a week in order to deliver newspapers for several routes for his employer, for which he has been able to earn approximately $25,000 per year to furnish support for his large family as well as higher education for two of his children. At the hearing, his immediate supervisor, Ralph Magio, described the Petitioner as a very trustworthy employee, possessed of substantial initiative and fortitude as evidenced by his working at such a strenuous job in his middle age. During the entire two years he has worked at this job (subsequent to his revocation and criminal conviction), the Petitioner has regularly collected, handled and accounted for substantial sums of money for this employer and his supervisor with never an irregularity or questionable incident. The witness established that he had no qualms in continuing to so employ the Petitioner and trust him in accounting for his money. This witness established that he, as well as mutual friends and business associates of he and the Petitioner regards the Petitioner as honest, fair and trustworthy in all monetary transactions and such other incidents of business dealing as he has been able to be involved in as a mere employee. The Petitioner has been unable, primarily for financial reasons, to operate his own independent business in his community since his criminal conviction. Former Sheriff Melvin Coleman of Orange County, Florida has known the Petitioner both socially and with knowledge of his business reputation before and after his criminal conviction. Mr. Coleman described in detail the Petitioner's initiative, fortitude and his sacrifices of many of life's pleasurable aspects necessitated by his being forced to accept whatever jobs he could find in order to support his family. His testimony establishes that he, as well as their mutual friends, continues to hold the Petitioner in high regard insofar as his reputation for honesty and trustworthiness are concerned, even among those mutual friends and professional acquaintances who are aware of the Petitioner's criminal conviction. Witness Jerry Behn is a licensed real estate broker of long standing. He described his former business relationships with the Petitioner when he was a licensed broker, as well as their personal friendship. Mr. Behn dealt with the Petitioner as a fellow real estate broker prior to his revocation without any qualm, experiencing no breach of trust or failure by the Petitioner to measure up to the standards of integrity required of a broker. This witness demonstrated that be and others in the profession, who have known the Petitioner both before and after the episode leading to his revocation, would trust the Petitioner in further real estate dealings and this witness supports his application for registration. Mr. Behn's trust and belief in the Petitioner's integrity has been buttressed by his knowledge of the Petitioner's rather harrowing financial circumstances and the perseverance associated with his employment at mediocre, financially inadequate jobs such as the strenuous occupation of delivering newspapers at all hours of the day and night seven days a week in order to support his family, when more rewarding jobs are denied him. He is impressed with the humility and courage demonstrated by the Petitioner's supporting a large family with such difficulty after having become accustomed to a high income and favorable station in life prior to his revocation of the privilege of practicing his profession. The Petitioner testified on his own behalf regarding his qualifications to be a real estate salesman and the factors incident to his rehabilitation since the revocation of his broker's license. The totality of his testimony and general demeanor reveal that the acute embarrassment and subsequent financial and familial hardships and sacrifices he and his family have endured since his downfall almost five years ago have instilled in him a valuable lesson which will constantly serve as a reminder to him of the standards of conduct required of one licensed in the real estate profession. He described the numerous mediocre jobs he has had to accept since his revocation in order to support his family, which have rendered his and his family's existence especially trying, since they were accustomed to a relatively high income and social station prior to his revocation which they have been unable to enjoy since. In describing the various unrewarding jobs he has held and the arduous nature of his current employment, the Petitioner indicated regret at not being able to resume his involvement in civic affairs and service organizations, but that his working schedule and the difficult hours it entails has prevented him from doing so. He is active in his church however and his testimony and demeanor corroborates that of the showing by the other witnesses on his behalf that he is a responsible, mature husband and father and that he heartily regrets the aberrational behavior he engaged in on the isolated occasion in 1976. He feels that the hard lesson learned as a result will render him more capable of adhering to the strict standards required in the real estate profession. He has completed all required educational courses to qualify as a real estate salesman.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is RECOMMENDED that a final order be entered approving the application of Jerry Ross Smart for licensing as a real estate salesman. DONE AND ENTERED this 11th day of May, 1981 in Tallahassee, Leon County, 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 11th day of May, 1981. COPIES FURNISHED: Richard J.R. Parkinson, Esquire 602 East Central Boulevard Orlando, Florida 32801 Linda A. Lawson, Esquire Assistant Attorney General Department of Legal Affairs Office of Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION JERRY ROSS SMART, Petitioner, vs. CASE NO. 81-271 BOARD OF REAL ESTATE, DEPARTMENT OF PROFESSIONAL REGULATION, STATE OF FLORIDA, Respondent. /
The Issue Whether Respondent, a licensed real estate broker, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate in the State of Florida pursuant to Chapters 455 and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code. Petitioner's responsibilities include the prosecution of administrative complaints. Prior to February 1993, Respondent was a licensed real estate salesperson in the State of Florida. In February 1993, Respondent filed an application with Petitioner for licensure as a real estate broker. The application provided the applicant with two boxes, one marked "yes" and the other marked "no" to the following question, instructions, and caveat: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty of 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, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES," attach the details 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 result in denial of licensure. If you do not fully understand this question, consult with an attorney of the Division of Real Estate. Respondent answered Question 9 in the negative. Respondent thereafter signed the application, including the following affidavit: The above named and undersigned applicant for licensure as a real estate broker 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, an records permit, without any evasion 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, whether and additional oath thereto shall be administered or not. On the evening of September 28, 1986, Respondent and her husband became involved in a loud argument at their home after having consumed too much alcohol. As a result, someone called the Fort Lauderdale Police Department. Respondent was thereafter arrested and charged with disorderly intoxication. On November 20, 1986, Respondent pled nolo contendere to one count of disorderly intoxication in Broward County, Florida. Respondent was fined, but adjudication of guilt was withheld. The court records reflect Respondent's name as being Katherine [sic] Lawand, which is her married name, and Kay Starr, which is the name Respondent uses for business purposes. On the evening of April 25, 1992, a virtual repeat of the incident of September 28, 1986, occurred. Again, as the result of a loud, drunken argument between Respondent and her husband, the Fort Lauderdale Police Department was called. As a result of her behavior, Respondent was arrested on the charge of disorderly conduct. On May 21, 1992, Respondent entered a plea of nolo contendere to one count of disorderly conduct in Broward County, Florida. The court records reflect Respondent's name entered on this plea as Kathline [sic] Starr. Respondent testified that she thought Question 9 on the application for a broker's license only pertained to felony crimes. Respondent testified that she does not consider herself to be a criminal and that she did not intend to mislead or deceive the licensing agency. On May 3, 1993, Respondent passed the broker licensure examination. On May 23, 1993, Respondent was issued her initial license as an inactive broker. The license number was BK0459569. Since September 24, 1993, Respondent has been actively licensed as either a broker or a broker/salesperson. At the time of the formal hearing, Respondent was licensed as an individual broker with an office at 120 East Oakland Park Boulevard, Fort Lauderdale, Florida. Following an automobile accident in Broward County, Florida, on December 12, 1994, Respondent was charged with "DUI/ Blood Alch Above 0.20" (Count I); "Driving Under the Influence" (Count II); and "Disobey Stop/Yield Sign" (Count III). On October 3, 1995, Respondent entered a plea of nolo contendere to the charge of driving under the influence of alcohol (Count II). Count I was nolle prossed and Count III was dismissed. As a result of the plea entered on October 3, 1995, Respondent was adjudged guilty of D.U.I. She was fined, placed on probation for six months, and ordered to perform 50 hours of community service. Her driver's license was suspended for six months. As a condition of her probation, she attended a Court Alcohol Substance Abuse Program D.U.I. School. The court records reflect Respondent's name as being Kay Starr Lawand. There was only minor property damage as a result of the accident involving Respondent on December 12, 1994. No person was injured.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be adopted that finds Respondent guilty of the violation alleged in Count I of the Administrative Complaint and orders that all licenses issued to her by Petitioner be revoked without prejudice to her right to reapply for licensure. It is further RECOMMENDED that Count II of the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998
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 At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.
Recommendation Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed. ENTERED this 7th day of February, 1990, in Tallahassee, Florida. K. N. AYERS 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 7th day of February, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel 400 W. Robinson Street Department of Professional Orlando, FL 32801-1772 Regulation 1940 N. Monroe Street Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard Tampa, FL 33603 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801
Findings Of Fact The Department is the agency charged with the licensing and regulation of real estate salesmen and brokers. At all times material to these proceedings, Respondent Peebles was a licensed real estate broker in Florida, having been issued license number 0396895. The last license issued was placed at 2690 52nd Street North, St. Petersburg, Florida. The home address listed with the Florida Real Estate Commission was Post Office Box 40063, St. Petersburg, Florida. On April 7, 1987, the Respondent entered a plea of guilty to the crime of credit card fraud in the United States District Court Middle District of Florida, Case No. 86-215 Cr- Orl-19. The crime was a felony in that the alleged acts involved the unauthorized use of access devices (credit cards) to obtain items of value aggregating $1,000 or more in a one-year period. The case was in federal court because the offense affected interstate and foreign commerce. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. However, the crime did involve fraudulent or dishonest dealings. Upon acceptance of the Respondent's plea, the court adjudicated the Respondent guilty and sentenced him to three years of imprisonment at Maxwell Air Force Base in a minimum security federal prison. In addition, the Respondent was ordered to make restitution of $60,590.00, and pay court costs. The sentencing occurred on April 7, 1987. A timely appeal from the judgment and sentence was not taken by the Respondent. The Respondent did not notify the Department of his guilty plea and subsequent conviction within the thirty-day period required by Section 475.25(1)(p), Florida Statutes. A Motion for New Trial based upon the ground of newly discovered evidence, was filed by the Respondent in the criminal case on March 1, 1990. The United States District Court, Middle District of Florida, has not ruled on the motion. Mitigation The Respondent does not currently have the financial ability to pay any fines if that penalty were to be imposed upon him in this case. The Respondent failed to notify the Florida Real Estate Commission of his conviction because he was under extreme stress when the conviction occurred and he was incarcerated.
Recommendation Based upon the findings of fact, conclusions of law, and the mitigation presented by the Respondent, it is RECOMMENDED: That the Respondent be found guilty of the allegations in Counts I through IV, which were proved at hearing. That the Respondent's real estate broker's license be revoked for seven years. DONE and ENTERED this 9th day of July, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0224 The Department's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #3, #4 and #5. Accepted. See HO #5. Rejected. See HO #9. Accepted. See HO #7. Rejected. Irrelevant. COPIES FURNISHED: James H. Gillis, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert J. Peeples Post Office Box 40063 St. Petersburg, Florida 33743 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact On July 30, 1985, Petitioner applied for licensure as a real estate salesman with the Commission. Question 6 and Petitioner's answers are as follows: Have you ever been convicted of a crime; found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld: Yes This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses...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 943.056 Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." Yes If you answered "YES" please state the details including dates and outcome in full. (Use separate sheet if necessary) Unsure of exact dates, which were all as a result of a severe nervous breakdown due to military service. The last was in June 1983 because I was in possession of a non- prescribed drug. Petitioner's application for a real estate salesman's license was denied by the Commissions based on Petitioner's answer to Question 6 and on his criminal record as reflected by the appropriate law enforcement agency, specifically a 1983 arrest and plea of guilty to two counts of possession of narcotics and narcotic equipment; a 1974 arrest for possession of stolen property; and, a 1980 arrest for disorderly conduct. An additional specific ground stated by the Commission was Petitioner's adjudication of incompetency. Petitioner was arrested in 1974 in Dade County Florida for possession of stolen property but the charges were later dropped because Petitioner had no knowledge of the property being stolen by his friend whose home the property was found in and where Petitioner was when arrested. Petitioner was arrested in 1980 in Ft. Lauderdale, Florida for disorderly conduct. This charge stemmed from Petitioner's action as a result of his nervous disorder. There is no evidence that Petitioner was convicted but only that he was admitted to a Veteran's Hospital for treatment. Petitioner was arrested in 1983 on charges of possession of narcotics and narcotic equipment. Whether Respondent plead guilty to these charges or to charges concerning possession of a valium capsule given to him by his mother for which he did not have a prescription is unclear but Respondent was placed on "non-reporting" probation for six (6) months and submitted to psychological treatment at the Veteran's Hospital for two (2) months. While in the United States Air Force, Petitioner served in the military police and was honorably discharged for medical reasons due to Petitioner suffering from a psychiatric disorder. Petitioner has not been adjudicated incompetent by a court of competent jurisdiction in accordance with Section 744.331, Florida Statutes, however, Petitioner was rated incompetent by the Veteran's Administration and on January 6, 1982, in accordance with Chapter 293, Florida Statutes (now Section 744.602 - 744.649; Florida Statutes) referred to as the "Veteran's Guardianship Law", Roy H. Brook, Jr. was appointed guardian of the estate of the Petitioner. (See Respondent's exhibit 9) The Veteran's Administration no longer rates Petitioner incompetent nor does it require a guardian to handle Petitioner's estate. Petitioner suffers from a mental disorder that can be controlled by medication. Petitioner is on medication that controls his mental problem. Petitioner understands the need for treatment and also understands that failure to take the medication as prescribed could result in substantial harm to himself. During a period of time when Petitioner was not on medication, or for some other reason, did not have his mental problem under control, he was: in and out of psychiatric wards in the United States and in Central America; in trouble with the law; had suicidal tendencies; attempted to purchase a home for $180,000 on an income of approximately $1,800 per month; and, even called the FBI threatening to kill President Reagan because of President Reagan's policy toward reducing Veteran's benefits. The Veteran's Administration, due to Petitioner's improved mental conditions has reduced Petitioner's rating for disability benefits from 100 percent to 70 percent.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Commission enter a final order GRANTING Petitioner licensure as a real estate salesman. Respectfully submitted and entered this 23rd day of May, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 23rd day of May, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0123 The following constitutes my specific rulings pursuant to Section 120.59(2); Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Petitioner Did Not Submit Any Proposed Findings of Fact Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8, except for the language "adjudicated" for which "rated" was substituted. Adopted in Finding of Fact 6 but clarified. Adopted in Finding of Fact 4 but clarified to show that charges were dropped. Adopted in Finding of Fact 5 but clarified to show no conviction and that he was admitted to Veteran's Hospital for treatment. Adopted in Finding of Fact 10 as clarified. Adopted in Finding of Fact 11 as clarified. Adopted in Finding of Fact 11 as clarified. Adopted in Finding of Fact 11 as clarified. Adopted in Finding of Fact 11 as clarified. COPIES FURNISHED: Isidore A. Bustamante 19406 NW 54th Place North Miami, Florida 33055 Lawrence S. Gendzier Suite 212 400 South Robinson Street Orlando, Florida 32501 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Salvatore A. Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee Florida 32301 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32801
The Issue Whether Respondent violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant hereto. Respondent, Richard G. Cash (Cash), has been a licensed Florida real estate broker since 1993. His broker's license number is BK-0267856. Prior to becoming a broker, Cash had been a licensed real estate salesperson since approximately 1973. On or about July 22, 1994, Michael J. Provost, Assistant State Attorney for the Twentieth Judicial Circuit of the State of Florida, charged Cash, by information, with aggravated battery. The charge arose from a domestic dispute involving Cash and his former wife, when she appeared uninvited at his home late one night under the influence of drugs and demanded to take their four year-old daughter. His former wife was considerably taller and heavier than Cash, and a struggle ensued in which Cash hit her with a stun gun. Both Cash and his former wife received injuries as a result of the altercation. On or about December 15, 1994, in the Circuit Court of the Twentieth Judicial Circuit for Collier County, Florida, Cash entered a plea of nolo contendere to Count I of the information, which was aggravated battery, a second degree felony. Adjudication was withheld, and Cash was placed on probation for five years. As a condition of probation, Cash was to pay his former wife $4,000 within 30 days of the sentencing and another $4,000 within 12 months of sentencing. In exchange, the former wife agreed to release Cash from any civil liability arising from the incident. Cash paid the $8,000 to his former wife. Cash did not notify the Florida Real Estate Commission that he had pled nolo contendere to a second degree felony. His explanation for failure to do so was that he understood from his attorney that because adjudication had been withheld, he had not been convicted of a crime. On or about January 16, 1998, a warrant was issued for Cash for violation of probation for having shotguns and handguns at his home without first obtaining consent from his probation officer. On April 17, 1998, Cash pled guilty to violation of probation. He was adjudicated guilty of violating probation and aggravated battery, his probation was revoked, and he was sentenced to three years, seven months, and fifteen days with credit for fifteen days already served.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding that Richard G. Cash violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and that his broker's license be suspended for one year or until he is released from the custody of the Florida Department of Corrections, whichever occurs first. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 29th day of September, 1999. COPIES FURNISHED: Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel Villazon, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Richard G. Cash Fort Pierce CCC 1203 Bell Avenue Fort Pierce, Florida 34982
The Issue Whether Petitioner should be disqualified from taking the real estate salesman license examination based on his alleged failure to disclose on his licensing application a prior arrest and conviction for possession of marijuana.
Findings Of Fact On December 19, 1980, Schwartz filed with the Board his application for licensure as a real estate salesman. In answer to the application's Question No. 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 paroled?" (R-1), Schwartz answered, under oath, "Yes." If an applicant answers "Yes", the application asks for details, including the outcome. Schwartz responded: 2.28.69 Possession Marijuana Broward Cty. Sentenced 31 months, Released 4/30/71, No Further Record. (R-1.) He further explained his answer in a letter attached to the application: Sirs: In regard to question #6, I was arrested 2.28.69 in Broward County for possession of a small quantity of marijuana. Sentenced by Judge Robert Tyson in Broward County Criminal Court, Ft. Lauderdale, Fl in June of that year to two years, seven months. Released M.C.R. on 4/30/71. No problems since. H. Jeffrey Schwartz (R-1.) As part of the application, Schwartz executed an affidavit which provides in part: The above named, and undersigned, applicant for licensure as a real estate salesman, upon being duly sworn, deposes and says that he is the person so applying, that he has carefully read the foregoing application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete, as h[is] knowledge information and records permit, without any evasions or mental reservations whatsoever, . . . (R-1.) In answering Question No. 6, Schwartz failed to disclose that he was indicted, arrested, and subsequently convicted of felonious possession of marijuana by the Hustings Court of the City of Richmond, Virginia, on January 31, 1968. Court records indicate that Schwartz, then 19 years old, pled not guilty to the charge; that he was represented by counsel during trial; and that upon hearing the evidence the court found him guilty and returned him to jail pending a pre-sentence-investigation. Subsequently, on March 18, 1968, the court suspended imposition of sentence "during. . .good behavior or until further order of this Court" (R-4), ordered him to pay costs of court, and placed him on supervised probation for an indefinite period. (R-4.) Schwartz then moved to Florida. In February, 1969, he was convicted of felonious possession of marijuana by the Circuit Court of Broward County and sentenced to 31 months at hard labor. On April 30, 1971, after serving his sentence, he was extradited by Virginia authorities on grounds that his Broward County conviction violated the "good behavior" condition of his earlier suspended sentence. After a hearing, at which Schwartz was again represented by counsel, the Hustings Court found he had not violated the provisions of his 1968 suspended sentence, and released him. At that time, Schwartz was 22 years old. (Testimony of Schwartz; R-4.) The Board does not contend that these two prior criminal convictions occurring over 12 years ago render him unqualified for examination and licensure as a real estate salesman. Since that time, Schwartz has been a law-abiding and responsible individual. He has conducted research and performed feasibility studies for various commodity marketing firms, and has gained the respect and confidence of his employers. On March 25, 1981, his civil rights were restored- -except to possess or own a firearm--by order of the Governor and Cabinet of Florida. (Testimony of Schwartz; P-1, P-2, P-3, P-4.) The Board seeks to deny Schwartz's license application based solely on his failure to fully disclose on the application his prior arrest and conviction for marijuana possession in 1968. Schwartz's defense is that he honestly believed the 1968 offense in Virginia was a juvenile matter, not a criminal offense; and that Question No. 6 on the licensing application did not cover juvenile offenses or adjudications. In reply, the Board acknowledges that Question No. 6 is ambiguous with respect to whether information concerning juvenile offenses is required. It follows that, if Schwartz--rightly or wrongly--believed that his 1968 offense was juvenile in nature, his answer to Question No. 6 was not unreasonable and cannot fairly demonstrate lack of honesty, truthfulness, and good character. (Prehearing Stipulation, Acknowledgment of Board Counsel.) Schwartz's testimony that he sincerely believed his 1968 offense to be juvenile in nature, and thus outside the purview of Question No. 6, is rejected as unworthy of belief. His assertion is uncorroboratcd by any independent evidence and is inconsistent with the effect of the following: The Official Court Records. These records, on their face, indicate that Schwartz was charged with and convicted of a criminal offense in 1968. The Procedures Used to Convict Him. At his 1968 trial, he pled not guilty; was represented by defense counsel--who unsuccessfully moved the court to strike the evidence as insufficient to support a judgment of guilty; and, after being found guilty was returned to jail pending pre-sentence investigation. It is unlikely that a 19-year-old could go through such an experience without realizing that he was being charged with and convicted of a crime. His Extradition and Return to the Virginia Court. His subsequent criminal conviction in Florida led to his extradition and return, under guard, to the Richmond Court of Hustings for alleged violation of probation imposed pursuant to his 1968 conviction. After hearing, where he was again represented by counsel, he was reinstated to probation. It is unlikely that Schwartz, then 22 years old, did not understand--by this second encounter with defense counsel and the Court of Hustings--that his 1968 offense was a crime, and that he had been convicted in a criminal, not a juvenile proceeding. Schwartz's Demeanor and Intelligence. Schwartz's demeanor as a witness showed him to be an articulate and intelligent individual. As a marketing analyst, he is required to conduct research and perform studies upon which others can rely. Such work requires rational investigation and analysis. His ostensible conclusion that the 1968 offense was a juvenile proceeding was not the result of diligent investigation and analysis: it represents a departure from the analytical habit he has developed in the working environment. (Testimony of Schwartz; R-4.) Since Schwartz's assertion that he genuinely believed his 1968 conviction was a juvenile matter is rejected, it follows that his answer to Question No. 6 was incomplete and evasive. With regard to the traits of honesty and truthfulness, it places his character in serious question. To the extent the parties' proposed findings of fact are incorporated in this Recommended Order, they are adopted; otherwise, they are rejected as unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of H. Jeffrey Schwartz for licensure as a real estate salesman be denied, without prejudice to his right to reapply in the future. DONE AND REC0MENDED this 19th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1981.
Findings Of Fact In his application for licensure as a real estate salesman dated January 19, 1982, Petitioner answered question 6 inquiring about previous arrests "yes" and for details wrote "see attached page." On the attached page Petitioner noted to see attached copy of his past driving record. That record shows four traffic violations in 1975, two in 1976 and one in 1977. Only one of these violations resulted from an accident and in this accident there were no injuries. None of these violations were for DWI. On April 1, 1975 Petitioner became 17 years old. On the attached page Petitioner also wrote in answer to question 6: In 1976 applicant was charged with breaking and entering after turning himself in to the police upon advice of the naval recruiting officer. Was exonerated of charge upon entering U.S. Navy soon thereafter. In 1977 applicant was charged with possession of marijuana. Sentenced to six months probation. After successfully completing said proba- tion charges were removed from ap- plicant's record. In checking police files in Ottowa County, no record of these charges will be found. I hope my honesty in this matter will be taken into consideration. NOTE: Both criminal violations mentioned occurred in Holland, Michigan, Ottowa County. The breaking and entering charges were dropped and Petitioner was never tried on those charges. The check made by Respondent through the Florida Department of Law Enforcement revealed no criminal record for Petitioner. This is corroborated by Exhibit 1. In 1977 when Petitioner was found guilty of possession of marijuana at the age of 19, it appears that adjudication of guilt was withheld and upon successful completion of six months' probation this offense was expunged from the record. This offense did not show up on the FBI fingerprint search conducted on this application. This too is corroborated by Exhibit 1. Possession of a small amount of marijuana is a misdemeanor. Petitioner has had no arrests for any offense, including traffic offenses, in the past four years (since he was 20 years old). His reputation for truth and veracity is good and he can be trusted in a business transaction. On the witness stand Petitioner presented a forthright demeanor and fully answered all questions. He applied for a job as an account executive with A. G. Edwards & Sons and after completing the battery of tests and the interview with the Vice President and Branch Manager of the New Port Richey office, the latter deemed Petitioner qualified. Exhibit 2 corroborates Petitioner's testimony in this regard. If the brokerage business picks up Petitioner expects to be employed in the A. G. Edwards office in February, 1983. While working as a correctional officer at Pasco County Correction Center, Petitioner was promoted temporarily to assist shift supervisor and was recommended for permanent promotion to shift supervisor. (Petitioner's testimony corroborated by Exhibit 4.)
Findings Of Fact Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings. In early 1982, Respondent came into possession of bank checks totaling $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license. DONE and ENTERED this 18th day of January, 1984, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of January, 1984. COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Brian D. Rist 3181 Harbado's Ct. Apopka, Florida 32803 Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
