The Issue Whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's November 23, 2004, Notice of Denial.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a 52-year-old man who resides in Miami- Dade County, Florida, with his wife of several months, Ana Hidalgo, her children, and his youngest child from a previous marriage. As a younger man, Petitioner was a licensed real estate broker. In the 1980's, however, he decided not to renew his license because, due to "lack of sales," he "wasn't really being active." At no time during the period of his licensure was he ever accused of any wrongdoing. After his real estate broker's license expired, Petitioner went into the real estate development and contracting business full-time. The business did not do well and, as a result, Petitioner found it difficult to adequately provide for himself, his wife, and children. Too proud to accept the financial assistance family members offered, Petitioner, instead, resorted to criminal activity to help ease his financial problems. Specifically, for a fee, he acted as an "intermediary" and helped "put . . . together" a cocaine supplier in Columbia (South America) with a cocaine distributor in Florida. This occurred approximately 17 years ago, in 1988. Other than his involvement in this drug smuggling scheme, Petitioner has been a law-abiding citizen. Petitioner was subsequently arrested for his role in this illicit operation and charged in federal district court with the felony crime of drug importation. In or about 1989, after entering a guilty plea, he was adjudicated guilty of the crime and sentenced to federal prison. Petitioner cooperated with the government and, consequently, had his sentence reduced. Petitioner served approximately 11 years in prison, until he was released on parole on September 28, 2000. He was a model prisoner. Since his release from prison, Petitioner has been employed as a car salesman by Lehman Auto World. Throughout the period of his employment, he has been a reliable, dedicated, hard-working and trusted employee, who has developed a reputation for honesty and fair dealing. As part of his job duties, Petitioner sometimes handles (in a fiduciary capacity) large sums of money. He has always discharged this responsibility in an honest and trustworthy manner. Petitioner is still on parole and under the supervision of a United States probation officer. Unless the sentencing court grants early termination,1 Petitioner's parole will terminate on September 28, 2005. In the almost five years he has been on parole, Petitioner has conducted himself in an exemplary manner. Petitioner's prison experience has transformed him into a more mature, responsible, and insightful person, who is repentant and remorseful about his crime. He understands all too well what his ill-advised decision, 17 years ago, to engage in criminal activity has cost him and his family, particularly his children, who did not have their father around for those 11 years that Petitioner was incarcerated. Petitioner is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his family. He has "learned [his] lesson." He is now a firm believer in old adage "crime does not pay." Given the price he has paid for his one criminal indiscretion, he has no intention of ever again letting his good judgment be overwhelmed by the lure of making easy money from criminal activity. He recognizes that to succumb to such temptation would be contrary not just to society's best interests but his as well, and that, if he ever encounters financial problems, he would be far better served "rely[ing] on [the help of] friends [and] family" than resorting to crime, as he did 17 years ago. In short, Petitioner has been rehabilitated, and it appears that the interest of the public and investors will not likely be endangered if he is granted the license he seeks. He now seems to be firmly rooted on the right side of the law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order granting Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 24th day of June, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 24th day of June, 2005.
Findings Of Fact Petitioner was convicted of forgery in the Circuit Courts of Pinellas County, Sarasota County, Broward County, Palm Beach County and Escambia County in 1954 and 1957 and sentenced to serve time in the State Prison. In 1967 he received a full and complete pardon with full restoration of civil rights (Exhibit 6). While serving his sentence in prison Petitioner accepted and adopted Christian principles and ceased the dissolute lifestyle of heavy drinking, to which he attributed his former criminal behavior. Following his release from prison in 1958 Petitioner joined Gideons International and since that time has devoted a considerable portion of his life to helping others by visiting prisons to conduct Bible classes and working to aid alcoholics. While living in Fort Lauderdale he was an active member of the Christian Business Men's Committee. In 1958 Petitioner was found in contempt of court for failure to make alimony payments and was sentenced to jail on those contempt of court charges. During this time he wrote checks that overdrew his bank account but later made full restitution for those checks. Petitioner has been engaged in the sign business since 1958. He started his own business in 1972 and obtained a contract to apply decals to Southern Bell telephone trucks. He moved to Indian River County some six years ago and continued to work for Southern Bell. Since moving to Indian River County Petitioner has conducted Bible classes at the Indian River Correctional Institute on Sunday mornings and Thursday evenings. Clarence T. Taber is a registered real estate broker and home building contractor. Mr. Taber will employ Petitioner as a real estate salesman when, and if, licensed. He has known Petitioner for 15 years, having met him through Gideons International, and would trust Petitioner completely in all business dealings. Petitioner's reputation for honesty and fair dealing is excellent. Petitioner is presently 69 years old and has led an exemplary life for more than the past 20 years.
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.
The Issue Whether Respondent is guilty of fraud, misrepresentation or concealment as charged in the Administrative Complaint which initiated this proceeding.
Findings Of Fact Petitioner, the Division of Real Estate in the Department of Business and Professional Regulation is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida under Chapter 455, Florida Statutes, (governing the Department of Business and Professional Regulation) and Chapter 475, Florida Statutes, (governing the practice or real estate brokerage in the State of Florida). Petitioner is also charged with the duty of prosecuting administrative complaints that allege violations of Chapter 61J2, Florida Administrative Code, which constitute the rules and regulations promulgated by the Florida Real Estate Commission to regulate the practice of brokering real estate transactions. Respondent, Edward Gensen, is a licensed real estate broker in the State of Florida under license number 0595539. Mr. Gensen has been licensed in such a capacity at all times material to the Administrative Complaint which initiated this proceeding. Mr. Gensen has also been licensed as a real estate broker in the State of Illinois since 1983 and is an enrolled agent with the Internal Revenue Service. Battery in 1984 On September 18, 1984, Timothy G. Vojak swore out a complaint in the Circuit Court of the Eighteenth Judicial Circuit of the State of Illinois, (the "criminal court"). The complaint accused Mr. Gensen of criminal battery in that "said defendant [Mr. Gensen] without legal justification, intentionally cause[d] bodily harm to Timothy G. Vojak, in that he struck . . . Vojak on the side of his head with his fist." Petitioner's Exhibit No. 4. A certified copy of the criminal complaint shows that a copy of the complaint was delivered to Mr. Gensen the same day that it was executed by the complainant. Mr. Gensen's explanation of the battery charge offered in this license discipline proceeding was that the facts leading to the charge were nothing more than a "traffic argument." (Tr. 13). Mr. Vojak pulled me over and got out of the car . . . I was in the car and got out . . . and he come out of his car and he come up to me and took a swing at me and hit me. * * * I hit him back. (Id.) Apparently, at least the fact that Mr. Gensen hit Mr. Vojak was agreed to by the parties at Mr. Gensen's criminal trial. (See the next paragraph, below.) On October 5, 1984, a criminal sentence form was filed with the Illinois criminal court in Mr. Gensen's case. It indicates that the criminal case of Mr. Gensen had been initiated not by indictment or information (that is, a charging document filed in court by the local prosecuting attorney for the state), as would be expected in the typical criminal case, but by "complaint." (Petitioner's Exhibit No. 4, page 1 of 3.) "[C]omplaint" obviously refers to the complaint filed by Mr. Vojak several weeks earlier. The sentence form also indicates that Mr. Gensen pled "not guilty." Written in the same handwriting as the name "Edward Gensen" in the blank on the form for "Defendant" are the words "STIP TO FACTS." These words are taken to mean that Mr. Gensen reached an agreement with the complainant and the prosecuting attorney as to what the facts were in the case. The sentencing form provides other information about the outcome of the case. It indicates that after the stipulation to the facts, Mr. Gensen was found guilty by the court (as opposed to by a jury). On the form, under the heading "TYPE OF SENTENCE" are a number of blocks to be checked. Among these blocks are: "Periodic Imprisonment," "County Jail," "No credit for good time," "Custody of U.S. Attorney General," and "Illinois Department of Corrections." None of the blocks associated with these "types of sentences," all of which are types of outcomes one would normally associate with a criminal sentence, are checked. Instead, two blocks are checked: "Fined," and "Probation." The "Fined" block shows that Mr. Gensen was fined $55 and assessed $35 in court costs. The "Probation" block is checked as well. But the word "[p]robation" is scratched through. In its place is written the word, "supervision." The criminal sentence form indicates that Mr. Gensen had a defense attorney named "McGrath." The initials of the State's Attorney are shown as "SPW." The sentence form is signed by a judge, whose name appears to be "R.A. McLaren." Finally, the criminal sentence form indicates that Mr. Gensen's "sentence" was stayed until "4/12/85," approximately 6 months after the form was signed by Judge McLaren. Supervision and a Question of Expungement Mr. Gensen completed the period of supervision without incident. But supervision "didn't call for me to do anything." (Tr. 14.) At the time of his trial, Mr. Gensen was told by an attorney unidentified in the record of this license proceeding, that his case "was a minor thing and it was erased and didn't exist afterward. After the supervision they take it away or something. He said you wouldn't have any record." (Tr. 19.) Mr. Gensen also had a vague recollection of Judge McLaren telling him that any record of his guilt would be expunged if he successfully completed the period of supervision. "If I remember right, it was something like, 'You have the conviction. You go on supervision and then everything is taken away.'" (Tr. 19.) Whatever Mr. Gensen may have been told at the time of his trial and sentencing, the record of his battery conviction in 1984 was not expunged. There was, moreover, no evidence offered in this proceeding that the court's maintenance of the records of his conviction for battery and "sentence" of a fine, assessment of court costs and supervision was a clerical error or in error in any other way. Application for a Florida Real Estate Broker's License By licensure application signed by Respondent on February 5, 1996, Respondent applied to become licensed as a real estate broker in the State of Florida. On the application for his real estate license, Respondent was asked to indicate whether he had ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violation), without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned. . . you are responsible for verifying the expungement or sealing prior to answering "NO." If you do not fully understand this question, consult with an attorney or the Division of Real Estate. (Petitioner's Ex. No. 2, pg. 2, question 9) (Emphasis added.)In response to this question, Respondent checked the "No" box. (Id.) Respondent swore that all answers and information contained in his application were true and complete. Respondent's signature was duly notarized. Respondent knew that his application for licensure had to be approved by the Florida Real Estate Commission. Respondent did not contact the Illinois court system to determine whether the court maintained records of the judge's finding that he was guilty or the sentence (payment of a fine, assessment of court costs and supervision). Respondent did not consult a lawyer about how to answer Question 9 on his real estate application. Respondent did not consult with the Division of Real Estate to determine whether he should mention the Illinois finding of guilt, probation and payment of fine, on the application for licensure. On or about March 18, 1996, in reliance upon Respondent's application, the State of Florida issued Respondent a license as a real estate broker. Other Applications; Other Convictions In addition to his licensure as a real estate broker in Florida, Mr. Gensen is also licensed as a real estate salesman. When he applied for his real estate salesman's license, he answered no to the question about whether he had ever been convicted of a crime or had a criminal record. Mr. Gensen testified that the 1984 battery in Illinois was not the only conviction in his past. "There was [another] one thirty-five or forty years ago. I can't remember the exact date. [It was also] a traffic argument." (Tr. 14.) No Other Administrative Complaints Mr. Gensen, in his several capacities as a licensee or holder of a privilege from the states of Illinois and Florida and the federal government, has never been disciplined or had to answer to an administrative complaint with the exception of one time: this case initiated by the Administrative Complaint. The Administrative Complaint The Administrative Complaint in this case seeks action against Mr. Gensen's real estate broker's license only. It does not ask the Florida Real Estate Commission or any other authority to take action against his salesman's license. Likewise, the complaint is based solely on the 1984 battery. There is no mention or allegation in the complaint relating to another conviction thirty-five or forty years ago. Consistent with the findings of fact in paragraphs 23 and 24, above, the Administrative Complaint charges Mr. Gensen with only one count: "the Respondent has obtained a license [the real estate broker's license] by means of fraud, misrepresentation, or concealment in violation of [s.] 475.25(1)(m), Florida Statutes." Administrative Complaint, p. 2. Fraud, Misrepresentation and Concealment At the close of the presentation of evidence in this case, Mr. Gensen made a lengthy statement. He admitted that he had been "guilty of making a mistake on my application. I failed to put down that I was found guilty of a charge of battery and fined . . . and given supervision . . . " . (Tr. 22.) Mr. Gensen then reviewed the numerous times in Florida, Illinois and with the federal government that he had applied for licensure or some sort of privilege in which the applications asked whether he had ever been convicted of a crime or had a criminal record. "In every instance in all these years I have put down that I had no criminal record. The battery charge never entered my mind when I filled out the application[s]." (Tr. 23.) Mr. Gensen also pointed out that revoking his license would cause him little if any financial loss because he has not been very active as a real estate broker in the last four years. Mr. Gensen closed with the following statement, So why am I here? Because I did not knowingly commit fraud, misrepresentation and concealment. I'm here because I try to be honest and I keep my word all my life and I did not cheat anybody. I make mistakes, but I'm not a dishonest person and I don't want to be found guilty of doing something dishonest." (Tr. 23.)
Recommendation Accordingly, it is recommended that the Florida Real Estate Commission enter a final order finding Edward Gensen to have violated Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint which initiated this proceeding. It is further recommended that his real estate broker's license be suspended for three months to be followed by nine months of probation, by the end of which he must have informed all licensing authorities of his criminal conviction for battery in 1984 and any other criminal conviction prior to the date he applied for his real estate broker's license. DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 4th day of August, 1998. COPIES FURNISHED: Christine M. Ryall, Senior Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire Law Office of Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Petitioner’s application for licensure as a real estate broker should be approved or denied.
Findings Of Fact Based on the testimony and documentary evidence presented in this proceeding, the following Findings of Fact are found: Respondent is the state agency charged with regulating the practice of real estate in the State of Florida, pursuant to section 20.165, chapters 455 and 475, Florida Statutes. Petitioner seeks to obtain a real estate broker license to practice real estate in Florida. Petitioner is a resident of the State of Utah and has held an active real estate broker license in Utah for at least 24 months during the preceding five years from the date of his application. In 2003, Petitioner was first licensed in Utah as a real estate sales agent. On February 12, 2007, Petitioner was issued a real estate broker license, and his limited-liability company, Ultimate Homes of Utah, LLC, was licensed as a real estate company in Utah. On July 28, 2016, Petitioner submitted an on-line application for a Florida real estate broker license. The application included a section which requested background information. Question No. 1, one of the four questions on the application, requested information about Petitioner’s criminal history. Specifically, Question No. 1 requested in pertinent part the following: “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or are you currently under criminal investigation?” The application also directed applicants, who responded “yes” to Question No. 1, to provide details regarding any criminal offense, including description of the offense, offense type, penalty or disposition, and whether sanctions have been satisfied for each offense. In his application, Petitioner answered Question No. 1 affirmatively. He disclosed that he plead guilty to one count of aggravated sexual abuse of a child, a first-degree felony, on July 5, 1995. The criminal offense occurred in Utah. Further details of the criminal offense will be discussed below. Petitioner appeared, pro se, at the December 14, 2016, Commission meeting where his application was considered. On January 12, 2017, Respondent entered a NOID, which stated a number of grounds for the intent to deny Petitioner’s application. Respondent’s NOID recited key findings of fact 1 and 4, and key conclusions of law D, G, and M, as grounds for its proposed denial of Petitioner’s application. Those key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s NOID, are as follows: Crimes in Application. Applicant’s criminal record is as revealed in application. * * * 4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive. * * * D. Having been denied licensure or having a license to practice any regulated business, profession or vocation, for conduct which would constitute a violation of this Chapter. 475.1791)[sic], 475.181 F.S. * * * G. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181 F.S. * * * M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. Regarding the circumstances of Petitioner’s criminal offense, on December 13, 1994, an Information was filed by the County Attorney for Circuit Court of Davis County, State of Utah, which charged Petitioner with three counts as follows: Count One: rape of a child, a first degree felony: On or about July 30, 1993, Petitioner engaged in sexual intercourse with a child under 14 years of age. Count Two: Sodomy Upon a Child, a first degree felony: On or about July 30, 1993, Petitioner engaged in a sexual act involving the genitals of the actor and the child under the age of 14 and the mouth or anus of either person. Count Three: Rape of a Child, a first degree felony: On or about August 13, 1993, Petitioner had sexual intercourse with a child who is under the age of 14. The victim involved in the criminal offense was a 13-year-old female, while Petitioner was 21 years old. Petitioner ultimately pled guilty to one count of aggravated sexual abuse of a child. On July 5, 1995, Petitioner was sentenced to an indeterminate term of three years to life, fined $2,000, and ordered to pay restitution for costs of the victim’s counseling. The court also recommended that Petitioner participate in a specialized sex offender treatment program. Petitioner served four years’ imprisonment, followed by five years of parole. Petitioner was released from prison in 1999. Following Petitioner’s release from prison, he was required to register as a sex offender and remained on the registry until October 10, 2015. At hearing, Petitioner expressed remorse for his actions, and acknowledged that the facts of the offense were accurately described in the filed Information. According to Petitioner, the events giving rise to the criminal offense began with his childhood. Petitioner described his childhood as one where he did not have a close relationship with his parents and did not receive affection from them. That lack of affection affected him to the extent that he was “love-starved.” Petitioner explained that “when he was 21 years old, a 13-year- old girl expressed interest in him and he made the mistake of pursing her as a love interest.” After his release from prison, Petitioner worked in the food service industry until he lost his job in 2002. Thereafter, he pursued a career working in real estate. During the time Petitioner has held a real estate license in Utah, he has earned various certifications related to real estate including, e-Pro Certification (2004), Distressed Property Expert (2011-2012), Short Sales and Foreclosure Resource Certification, and Residential Specialist Certification. Petitioner was given the opportunity to submit letters of recommendation to show evidence of his reputation, honesty, truthfulness, trustworthiness, and good character. Petitioner offered several letters from past customers and business partners to attest to his work ethic, responsibility, and trustworthiness in real estate dealings. Those letters are of limited value as it relates to moral turpitude and rehabilitation because the authors of the letters had no knowledge of Petitioner’s criminal history. Petitioner’s testimony regarding his otherwise blemish-free criminal history since the incident, employment history, and achievements since the criminal offense is found to be credible. Petitioner acknowledged in his testimony at the final hearing that what he did in 1993 was wrong. He has not attempted to hide the incident from Respondent as he disclosed the details of the incident on his application. It is undisputed that he completed a sex offender treatment program, completed his probation, and was released from the requirement to register on the Utah sex offender registry in 2015. Furthermore, there is no evidence that Petitioner has been involved in any criminal activity since the criminal offense in 1993, nearly 25 years ago. In his testimony, Petitioner also highlighted his qualifications as a broker, which were corroborated by the letters of support from Petitioner’s former clients that were offered at the hearing. Petitioner is a father of three children, has been married for more than 20 years, has been a licensed real estate broker in the state of Utah for 14 years, and has not exhibited a pattern or practice of violations before or after the incident in 1993. Rather, the incident in 1993 stands alone as the only blemish on Petitioner’s record. No evidence was presented at hearing of any prior discipline against Respondent’s license in any jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Real Estate issue a final order approving Victor Rothaar’s application for licensure as a real estate broker. DONE AND ENTERED this 26th day of July, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 2017.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: By application filed on November 5, 1990, with respondent, Florida Real Estate Commission (Commission), petitioner, Mark E. Smith, sought licensure as a real estate salesman. In response to question seven on the application, which asked whether the applicant had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld, petitioner answered in the affirmative. As is relevant to this proceeding, respondent acknowledged that he had been convicted of driving while intoxicated (DUI) in December 1983 in St. Lucie County, Florida and again in March 1988 in Juanita County, Pennsylvania. 1/ After reviewing the application, respondent issued proposed agency action in the form of a letter on May 21, 1991, denying the application because of petitioner's "answer to Question #7 of the licensing application and/or your criminal record". The denial prompted petitioner to request a formal hearing. Smith, who just turned thirty six years of age, admitted that he once had a drinking problem which resulted in the two arrests. However, after his 1988 DUI arrest and conviction in Pennsylvania, Smith attended a twenty-eight day rehabilitation program in that state and thereafter received six months of out-patient counseling. He now regularly attends alcoholic anonymous meetings. Thus, to the extent a DUI can serve as the basis for denying an application, there has been a sufficient lapse of time since the convictions and subsequent good conduct on petitioner's part to demonstrate rehabilitation. Smith is presently employed by the marketing department of Sunrise Bay Resort and Club Condominium, a time sharing resort in Marco Island, Florida. His duties are to solicit prospective customers to visit the resort and hear a sales presentation. Smith desires a real estate license so that he can become involved in the sale of real estate, and if licensed, he intends to work for his present employer. His assertions that (a) he is simply attempting to better himself and (b) he poses no threat to society or the real estate profession, while self-serving to some degree, were not contradicted. Moreover, they are corroborated by a letter received in evidence as petitioner's exhibit 3. Finally, Smith's application file reflects that he was previously licensed in Florida as a real estate salesman from September 1983 until March 1985. There is no evidence that he was disciplined by the Commission during that period of time. Thus, it is found that Smith possesses the necessary attributes for licensure as a salesman.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Mark E. Smith for licensure as a real estate salesman be GRANTED. DONE and ENTERED this 16th day of August, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.
The Issue The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes, and Florida Administrative Code Rule 61J2-2.027(2), and, if so, what discipline should be imposed.
Findings Of Fact Respondent is 58 years old. He is employed full-time as a real estate sales associate. Respondent holds an active real estate sales associate license. His license number is SL706350. The license was issued to Respondent based upon his sworn application for licensure submitted on or about March 14, 2001. Question No. 9 on the license application asked whether Respondent had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if [he] received a withhold of adjudication.” The following explanation is provided as part of the question: This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering “NO.” (Emphasis supplied) Immediately following Question No. 9 is the following statement in all capital letters: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE REVOCATION OF YOUR LICENSE OR THE DENIAL OF A REAL ESTATE LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR THE DIVISION OF REAL ESTATE. Respondent checked the box marked “NO” for Question No. 9 on the application that he submitted. Respondent’s negative answer to Question No. 9 was a material misstatement of his criminal record. On March 27, 1972, Respondent pled guilty to attempted robbery in the third degree in the Erie County Court in New York. The offense was a felony. On May 5, 1972, Respondent was sentenced to five years of probation for that offense. Respondent’s probation was revoked on January 14, 1974, and he was sentenced to “the care and custody of the NY State Narcotic Addiction Control Commission for an indefinite period of 60 months.” The latter sentence ran concurrently with a sentence imposed for another offense, the substance of which is not reflected in the record. On August 3, 1992, the Erie County Court issued a Certificate of Relief From Disabilities to Respondent, which relieved him of “all disabilities and bars to employment, excluding the right to be eligible for public office.” The certificate expressly states that it “shall NOT be deemed nor construed to be a pardon,” and it is limited to the “crime or offense specified [t]herein.” The Certificate of Relief From Disabilities makes no mention of expungement or sealing of the records related to the enumerated offense. The only offense enumerated in the Certificate of Relief From Disabilities is the third degree attempted robbery conviction with a sentence date of May 5, 1972. No other offenses are mentioned. On February 18, 1993, the New York Executive Department, Board of Parole, issued a Certificate of Good Conduct to Respondent. The certificate referenced three offenses: the third degree attempted robbery conviction discussed above; a second degree robbery conviction with a sentence date of May 8, 1975; and a federal distribution of heroine conviction with a sentence date of May 1, 1978. The purpose of the Certificate of Good Conduct was to “remove all legal bars and disabilities to employment, license and privilege except those pertaining to firearms . . . and except the right to be eligible for public office.” The certificate states that it “shall be considered permanent.” The Certificate of Good Conduct makes no mention of expungement or sealing of the records related to the enumerated offenses. Respondent testified that his negative answer to Question No. 9 was based upon his understanding of the legal effect of the Certificate of Relief from Disabilities and the Certificate of Good Conduct. Specifically, Respondent testified that although he understood that the certificates did not “remove” his criminal history or expunge his records, it was his understanding that the certificates provided him a “safe harbor” to answer “no” to Question No. 9 because all legal bars to employment had been removed by the certificates. Respondent’s understanding regarding the legal effect of the certificates and his obligation to disclose his prior offenses based upon the certificates was based, in part, on advice he received from an attorney in New York. Respondent knew that the Department would learn of his criminal history through the background check based upon the fingerprint card that he submitted with his license application, and he credibly testified that he did not intend to mislead the Department regarding his criminal history through his negative answer to Question No. 9. Respondent was unaware at the time he submitted his license application that the Department and/or the Florida Real Estate Commission (Commission) processed applications in which no criminal history was disclosed differently than applications in which a criminal history is disclosed.2 Respondent’s understanding regarding the legal effect of the certificates was erroneous. Respondent acknowledged as much in his testimony at the final hearing (Tr. 54) and in his PRO (at ¶29). The record does not establish precise legal effect of the certificates,3 but it is inferred that the certificates restore the civil rights that Respondent lost due to his felony convictions. It is also inferred that the reason that the Certificate of Good Conduct does not mention Respondent’s misdemeanor offenses (See Endnote 5) even though it was issued after those offenses is because misdemeanor convictions typically do not result is the loss of civil rights as is the case with felony convictions.4 Neither of the certificates expunge or seal any of Respondent’s criminal records and, contrary to his understanding at the time, the certificates did not excuse Respondent from disclosing his criminal offenses in response to Question No. 9 on the license application. The evidence clearly and convincingly establishes that Respondent was convicted of third degree attempted robbery, a felony, in 1972; that the offense was not sealed or expunged; and that Respondent failed to disclose that conviction on his license application when he answered “no” to Question No. 9.5 The evidence does not clearly and convincingly establish that Respondent intentionally misrepresented or fraudulently concealed his criminal history from the Department by answering “no” to Question No. 9.6 To contrary, the evidence establishes that Respondent’s negative answer to Question No. 9 was based upon his good faith, albeit erroneous belief, that he was not required to disclose his prior criminal offenses in light of the Certificate of Relief from Disabilities and/or the Certificate of Good Conduct. It has been 34 years since Respondent’s third degree attempted robbery conviction, which is the basis of the Administrative Complaint. It has been more than 18 years since Respondent’s last criminal offense, which was a misdemeanor petit larceny offense. All of Respondent’s criminal offenses occurred in the state of New York. He has remained out of trouble with the law since he came to Florida in 2000. Respondent has not been the subject of any disciplinary action, other than this proceeding, since receiving his license. Respondent did not present the testimony of any character witnesses, but he credibly testified that he has completely turned his life around since the time of his criminal offenses in New York. Respondent served in the U.S. Air Force Security Service in Viet Nam. He was honorably discharged. Respondent was licensed as a mental health counselor in New York and Virginia prior to coming to Florida and obtaining his real estate sales associate license. Respondent testified that he was required to disclose his criminal background and undergo a background check in order to obtain those licenses; that he did not disclose his criminal background on the license applications based upon his understanding of the certificates described above; that his criminal background was not an issue to the licensing agencies in New York and Virginia, even though it was not disclosed on his license applications; and that this experience (along with the advice he received from the attorney in New York) led him to believe that his criminal records were sealed and need not be disclosed. Respondent offered no evidence to corroborate this self-serving testimony, and it is given very little weight because it is unknown how, if at all, the disclosure requirements and licensure regimes for mental health counselors in New York and Virginia compare with the disclosure requirements and licensure regime for real estate sales associates in Florida.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order that: finds Respondent not guilty of violating Section 475.25(1)(m), Florida Statutes (Count I of the Administrative Complaint); finds Respondent guilty of violating Florida Administrative Code Rule 61J2-2.027(2) and, hence, Section 475.25(1)(e), Florida Statutes (Count II of the Administrative Complaint); imposes an administrative fine of $1,000; suspends Respondent’s license for 30 days; places Respondent on probation for one year after the end of the suspension period; and imposes the costs related to the investigation and prosecution of this case, excluding costs associated with an attorney’s time. DONE AND ENTERED this 21st day of December, 2006, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st of December, 2006.
Findings Of Fact Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of February, 1982, 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 February, 1982.
Findings Of Fact Petitioner is a licensed barber in the State of New York where he has 30 years experience in men's hair styling. He also maintains a residence in Pompano Beach, Florida. Petitioner was convicted of attempted grand larceny, third degree, in the State of New York in 1978. The offense involved assisting his employee in attempting to defraud an insurance company. Petitioner was fined $350 for committing this offense, which is a Class A misdemeanor. He was issued a Certificate of Relief from Disabilities by the State of New York on September 25, 1978. A licensed Florida real estate broker and a building contractor testified on behalf of Petitioner. The broker has known Petitioner for over five years and trusts him sufficiently to employ him in her realty business if he is granted a real estate salesman's license. The building contractor has known Petitioner for nine years and has found him to be honest and reliable. Petitioner also introduced twelve letters of recommendation submitted by business and professional persons. These individuals have known Petitioner for substantial periods, and uniformly conclude that he is honest and trustworthy. They base their conclusions on extensive personal contact with Petitioner, as well as their knowledge of his general reputation.
Recommendation From the foregoing, it is RECOMMENDED that the application of Anthony A. Deriggi for registration as a real estate salesman be DENIED. DONE and ORDERED this 3rd day of November, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
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.
