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. /
Findings Of Fact Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989.
The Issue Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent is and, at all times material hereto, was a duly licensed real estate salesperson in the State of Florida. Respondent is now and was at all times material herein actively engaged in major real estate developments and has also operated on behalf of family owned corporations. During the relevant time period, Respondent has not engaged in the general real estate brokerage business. On August 16, 1984, Respondent was found guilty in federal court of one count of knowingly, willfully, and unlawfully participating in the use of extortionate means to collect and attempt to collect an extension of credit in violation of Title 18, United States Code, Section 894. Respondent was sentenced to 18 months in prison and fined $2,000. The incident which gave rise to the conviction occurred in and while the Respondent was a resident of Illinois, and prior to the Respondent's being issued his Florida real estate license. Respondent testified that in 1983 he owned a Chicago nightclub. According to Respondent, during that time period someone owed Respondent a gambling debt in the amount of $36,000. The person who owed the money to Respondent said he would pay the debt. Because the Respondent was leaving town, he asked his wife's uncle to pick up the money. The Respondent indicated, that unknown to him, the uncle used unlawful means in an attempt to collect the funds. It was this collection effort which eventually lead to the Respondent's arrest, not guilty plea, and guilty verdict in 1984. The Respondent moved to Florida and, subsequently, on or about January 19, 1994, he applied to become licensed as a Florida real estate salesperson. The application contained an affidavit which provided in part that "such responses are true and correct, and are as complete as his/her knowledge, information and records permit without any evasions or mental reservations whatsoever." Petitioner's application form contained Question 9 which requested information concerning an applicant's criminal history. In pertinent part the question is 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? 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. * * * Your answer to this will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In response to this question, Respondent answered in the negative by marking the "no" box. On April 18, 1994, the State of Florida issued Respondent license #0611142 as a real estate salesperson. On January 10, 1994, Respondent signed the application. By his duly notarized signature, the Respondent swore that all answers and information provided on his application were true, correct, and complete. On or about January 16, 1995, Respondent applied to become licensed as a real estate broker in the State of Florida. Respondent, again, checked "no" to Question 9 on his broker's application as to whether or not he had ever been convicted or found guilty of any crime. Also, Respondent again swore that all answers and information contained in his application to become a real estate broker in the State of Florida were true, correct, and complete. Again, the Respondent's signature was duly notarized. The broker's application was approved for the Petitioner. However, a broker's license was not issued because Respondent failed to pass the state examination required to be licensed as a broker. Respondent testified at the formal hearing that the reason he did not disclose his prior conviction on his real estate applications was that he had spoken to his brother who advised him that matters over 10 years old did not have to be disclosed. Respondent did not consult with an attorney, the Division of Real Estate or anyone else other than his brother about how to answer Question 9 on his real estate application. Respondent's stated justification for checking "no" on his license applications lacked credibility given the clear wording of Question 9 on the application form. The Respondent has had no other incidents of criminal problems. Similarly, there have been no civil judgments involving the Respondent and dishonest dealing. Finally, there have been no prior disciplinary matters against the Respondent. The Respondent has served in the military and was honorably discharged and earned a two-year degree in electronics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 * day of February, 1998. *Filed with the Clerk undated. -ac COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 July 21, 1999 Henry M. Solares, Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis DOAH Case No. 97-3722 Dear Mr. Solares: Enclosed is the Amended Recommended Order issued in the referenced case. It was issued in order to correct a scrivenners error in page 8 of the original order. Please replace page 1 and page 8 enclosing for pages 1 and 8 oriignally sent to you. Please accept my apologies for any inconvenience this might have caused. Sincerely, CSH/scl Enclosures cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire CAROLYN S. HOLIFIELD Administrative Law Judge
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 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, Mike Somogyi, filed an application for registration as a real estate salesman with the Respondent, Board of Real Estate, on or about April 16, 1980. By Order dated June 23, 1980, Respondent denied Petitioner's application because Petitioner had not made it appear to the Board that he was honest, truthful, trustworthy, and of good character as required by Section 475.17, Florida Statutes. Respondent based its denial on Petitioner's arrest in 1980 for possession of controlled substances, i.e., marijuana, quaaludes and narcotic equipment. A five count information was filed against Petitioner on March 4, 1980, in Martin County. Petitioner entered a not guilty plea and was subsequently approved for the Pretrial Intervention Program. Petitioner's required involvement with the program will expire on January 15 1981, and if the program is successfully completed, all charges pending against Petitioner will be dismissed. Respondent further relied upon Petitioner's arrest on September 1, 1976, in Dade County, Florida, for resisting arrest. However, that charge was dismissed in October, 1976. Petitioner has no other record of arrests or convictions.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The parties Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. From January 24, 1994, through the present, Respondent Ernest Eric Yeghian, has been a licensed real estate broker in the State of Florida, having been issued license number BK- 0583985, as well as the broker/officer of Vikon Realty Corp., a broker corporation located at 131 South F Street, Lake Worth, Florida. For the two-year period preceding his licensure as a broker or, stated otherwise, from 1992 to January 24, 1994, Respondent was licensed as a real estate salesperson in the State of Florida. Respondent's conviction In early 1996, Respondent pled guilty to one count of bank bribery, a violation of 18 U.S.C. § 215(a)(1), pursuant to a plea agreement reached in the matter of United States of America v. E. Eric Yeghian, United States District Court, District of Rhode Island, Case No. 1:95CR00021-004. Respondent resolved, in part, to enter such plea based on advise of counsel that the banker's coercion, discussed infra, would not constitute a legal defense to the offense charged. On March 20, 1996, judgment of conviction was entered on Respondent's plea and he was sentenced to 10 months' imprisonment and fined $10,000.2 The judgment further provided that upon release from imprisonment, Respondent would be on supervised release for a term of 3 years. Respondent failed to notify the Florida Real Estate Commission of the guilty plea or his conviction within 30 days of having pled guilty or having been convicted. Respondent voluntarily surrendered to the United States Bureau of Prisons (FPC Jesup, Georgia) on April 17, 1996, and was released to a halfway house (located in West Palm Beach, Florida) on or about December 17, 1996, to serve the last 60 days of his sentence. Respondent was released from custody on or about February 14, 1997, and will have completed his probation (supervised release) on February 14, 2000. The pending complaint At some point following Respondent's licensure as a real estate broker, the Florida Real Estate Commission (FREC) requested a criminal background check by the Federal Bureau of Investigation (FBI). That investigation was completed on November 30, 1995, and revealed that Respondent had been arrested on March 30, 1995, on the charge of bank bribery. Subsequently, the Department learned of Respondent's plea and conviction, and on December 23, 1996, filed a Uniform Complaint Form which initiated an investigation to resolve whether cause existed to believe that Respondent had violated Section 745.25(1)(p), Florida Statutes, by having failed to notify FREC of his plea of guilty or conviction. By letter of December 27, 1996, the Department advised Respondent of the pendency of the complaint and investigation, and proposed to schedule a meeting to discuss the complaint. The letter further provided that "[y]ou may submit a written response to the information contained in the complaint within 20 days after receipt of this letter." Respondent was interviewed by the Department's investigator on December 30, 1996, and by letter of January 3, 1997, he submitted a written response to the complaint, as well as an excerpt from court documents that explained his version of events (Respondent's Exhibit 4), and character reference letters that had been submitted to the federal judge (Respondent's Exhibits 6-13). Respondent's response to the complaint included the following explanation regarding his arrest and conviction: In 1983, I graduated from high school. I had been accepted by the University of Massachusetts and began my studies there in the fall of that year. It soon became apparent to me that even though I was doing well at school, I had to drop out . . . to assist my family financially. . . . I began to work full time as a laborer in a scrap metal yard in the winter of 1983. As I continued to work as a laborer and save my earnings, I began to learn as much as I could about the real estate business. In 1984, a friend and I pooled our savings and purchased our first property, and [sic] abandoned tenement in Providence's Armory district. I moved in and completely renovated the building from top to bottom myself. I then advertised and sold the home. We reinvested the profit into two similar properties. Fortunately, these properties also were sold at a profit. We continued to repeat this process many times over the next 3-4 years, also doing all the work ourselves. * * * In early to middle 1987, it became apparent to me that, due to the rapidly rising prices of real estate in Rhode Island, attractively priced existing properties would continue to be more and more scarce. I decided that it would be more cost effective to begin building new properties. However, since I was inexperienced at this type of development, I decided to associate with partners who were older and more seasoned. A partnership was formed to build 48 condominiums in North Providence. We agreed that my role would be to supervise the day to day construction and that they would secure the bank financing for the project. The construction began in early 1986. Most everything went well and soon we were selling the condominiums at a profit. Around that time, one of my partners introduced me to a college friend of his, an attorney named George Marderosian. Mr. Marderosian began to do work for the partnership as well as becoming my personal attorney. Early in 1987, Mr. Marderosian became aware of [a] piece of property, selling at a reasonable price, which was suitable for the same type of condominium development. Because the first project was going well, it seemed a [sic] natural to proceed and do this project as well. . . . In early 1987, . . . [my partner and I] decided to put a deposit on the land. I then spent the next 8-10 months verifying the zoning, getting permits for water and sewer service, having engineering and construction plans prepared, etc. This along with the eventual supervision of the construction was my usual role. In the course of this work, I provided all of this development information to Mr. Marderosian, who was preparing the application for the bank loan. The application was made for the loan in the fall of 1987. I learned in late 1987 that the loan was approved and was gratified because I had invested the better part of one year in preparing the project. . . . After I was told our loan was approved (and only several days before the closing) Jay Moore, my partner in both the old and new projects, explained to me that he had been approached by our loan officer, Kenneth Annarummo, who was looking for money. I am not entirely sure about the exact circumstances. However, I am sure that this first approach was not to me personally. My best recollection is that Mr. Moore explained to me that Mr. Annarummo told him he wanted $20,000 and that he had reluctantly agreed to give it to him. I do recall discussing the matter with our attorney. He told us that he, not being a customer of the bank himself, could give money to Mr. Annarummo. He instructed Mr. Moore and me to give him $10,000 and he would take care of the rest. With so much at stake and so much already invested, I simply wanted to put the problem behind us. I rationalized that it was just part of doing business. However, while I could not say exactly what law was being broken, I realized paying Mr. Annarummo was wrong. In early 1988, I found another property I felt was an excellent value. . . . I spent the first 7-8 months of 1988 doing all the due diligence work on the site. I put down a deposit on the land, spent money on engineering, environmental tests, wetlands studies, etc. By summer 1988 all the research and 3 separate appraisals seemed to indicate the property was an excellent value. In approximately August, 1988 I applied for the loan for this property. About a month later, while I was home during the work week with a broken arm I called to my office to check my messages. There was a message to call Mr. Annarummo at his bank in reference to my loan application. I called Mr. Annarummo and he told me that the loan committee had approved my loan and that the loan could close within several weeks. About one week later during the early evening I was home, again, with the same broken arm. I was not expecting anyone. There was a knock on my door, It was Mr. Annarummo and his wife. He had never been to my home before and he was not invited on that occasion. At first, I did not know why he was there. He stepped inside and told me that he wanted to speak to me about something. He said he had a car loan that he wanted to "get rid of." I genuinely did not know what he was talking about and I asked him what he meant. In response he bluntly stated that he wanted me to pay off his car loan. I did not know what to say. I responded that I would have to get back to him and, with little else said, he and his wife left. After he left, I tried to put the approach out of my mind and pretend it never happened. I thought perhaps he wouldn't bother me anymore or be too embarrassed to bring it up ever again. A few days passed and I was back at work and I got a phone call from Mr. Annarummo. He started to press me for an answer. Again, I told him I'd have to get back to him. Quite plainly, I did not want to pay him money, but I also did not know what to do. I told him I had a customer in my office and I'd have to get back to him and hung up. By then it was obvious to me that he was not going to drop the issue. I contacted Mr. Marderosian and told him what had happened and I asked him how I should handle it. Mr. Marderosian said to me that it was unfortunate that Mr. Annarummo was doing this to me but if he handled the situation for me that would solve the problem for the time being. We agreed that in future projects I should develop a relationship with another bank so I would not be placed in such a tight position. (At the time, Mr. Annuarummo also controlled the day to day funding of the two major projects in which I was involved) I agreed to give him the money. Inherently, I knew then and clearly know now that what Mr. Annarummo was demanding and what George Marderosian helped me to do, was wrong. At those particular moments I felt I had only two choices. to give him the money or to refuse to do so. I did not want to give him the money because he had no right to it. Besides, I knew it was wrong and probably illegal. I did not want to refuse because I felt Mr. Annarummo had the power to ruin or at the very least severely disrupt everything I had been working to build my whole life and most importantly the livelihood and support of my family. I felt stuck in the middle with only two bad choices. Eventually, my fear of the potential ramifications of not appeasing Mr. Annarummo in conjunction with Mr. Marderosian offering an apparent way out led me to make the decision I made. It was a wrong decision. With the benefit of hindsight, I now see that there was a third choice. I could have brought Mr. Annarummo's approach to the attention of his superiors at the bank and/or the appropriate authorities. This experience is indelibly burned into my consciousness. I am older, wiser and more secure in my judgement. If ever I were to find myself confronted with this type of situation again, my reaction would be completely contrary to what I have done in the past. . . . (Respondent's Exhibit 14.) Respondent explained his failure to notify the Florida Real Estate Commission of his plea or conviction within 30 days of having pled guilty or having been convicted, as follows: . . . it was my absolute intention to address this issue with the F.R.E.C. upon returning home (which I did just 12/17/96). I clearly am in error in terms of the timetable for notification which I now understand should have been within 30 days of the plea or conviction. I, wrongly, was under the impression that notification was required prior to resuming the use of ones' license. I should have known the notification procedure and I am clearly at fault for not doing so in the required time frame. (Petitioner's Exhibit 7, at page 3.) Thereafter, on April 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding which charged that Respondent violated the provisions of Section 475.25(1)(f), Florida Statutes, "by having been convicted or found guilty, regardless of adjudication, of a crime which directly relates to the activities of a licensed real estate salesperson or involves moral turpitude or fraudulent or dishonest dealing" (Count I), and Section 475.25(1)(p), Florida Statutes, by "not having informed the Florida Real Estate Commission in writing within thirty (30) days of having pled guilty or having been convicted of a felony" (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be as follows: . . . The penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 3 At hearing, Respondent offered testimony consistent with the explanation he had previously offered the Department, discussed supra. Respondent also observed that, at the time, he was fearful that if he refused the banker's demands, the banker would interrupt the funding that had been obtained for the projects. Respondent further testified that he fully disclosed the circumstances to his attorney and on the attorney's advice delivered the funds (to the attorney) for delivery to the banker. Finally, Respondent averred that he never misrepresented or withheld any material facts regarding the projects during the loan process; had no involvement in structuring the loan transactions; and only agreed to pay the banker (on advice of counsel) to avoid disruption of the previously approved funding. In Respondent's view he was not offering money (a bribe) for something he was not entitled to, but was being extorted by the banker to receive that to which he was entitled (the approved funding). Respondent's explanation regarding the circumstances surrounding the events which led to his conviction is credited. Respondent also offered credible proof that he cooperated fully with the government; that he accepted responsibility for his actions; and that he suffered a significant penalty for his misjudgment. The proof further reveals that the events which led to his conviction occurred over 11 years ago (when Respondent was 22-23 years of age); that in the 7 years Respondent has been licensed in Florida (as a salesperson or broker) no complaints have been filed against him; that among those who know of him, Respondent is considered honorable and trustworthy; and that his involvement in the events leading to his conviction was more likely attributable to naivete than guile. Finally, the proof demonstrates that Respondent continues to provide financial support for his parents and that loss of licensure would impose a severe financial hardship on Respondent and his family.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered which finds the Respondent not guilty of the offense charged in Count I of the Administrative Complaint. It is further RECOMMENDED that the final order find Respondent guilty of the offense charged in Count II of the Administrative Complaint, and that for such offense Respondent receive a written reprimand. DONE AND ENTERED this 9th day of July, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 9th day of July, 1999.
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.)
The Issue The ultimate issue for determination at final hearing was whether Petitioner's application for licensure as a real estate salesperson should be approved.
Findings Of Fact In October 1992, Petitioner filed an application with Respondent for licensure as a real estate salesperson, together with the required fee. The application asked several questions, including in pertinent part: Question 9: if Petitioner had been "convicted of a crime, found guilty or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld," and Question 13: if Petitioner had had a license to practice any regulated profession revoked upon grounds of fraudulent or dishonest dealing or violations of law. Petitioner responded in the affirmative to both questions and provided written documentation and statements regarding the questions. Petitioner attached to her October 1992 application for licensure various letters to support her application. The letters included one from her probation officer indicating her compliance with her probation; from the local board of realtors indicating that no complaints had been registered against Petitioner during her membership with them, which was from 1979 to 1982 and 1990 to 1992; and from her present employer who is a licensed real estate agent and has employed Petitioner since 1989. On October 21, 1992, Respondent denied Petitioner's application for licensure as a real estate salesperson. The denial was based upon her response to questions 9 and 13 on the application, specifically her 1991 conviction and sentence and the 1992 revocation of her real estate salesperson license. On May 29, 1991, Petitioner plead nolo contendere to three felony counts of grand theft in the third degree. She was placed on probation for five years with special conditions, and adjudication of guilt was withheld. The special conditions of Petitioner's probation were that she would make restitution in the amount of $19,864.52, that she would perform 500 hours of community service, that she would fully cooperate with the State Attorney's Office in the investigation of the criminal activity in which she was involved, and that the probation may be terminated, upon motion, after 30 months. The theft involved a scheme devised by Petitioner's "boss" to obtain funds, beyond entitlement, from the City of Miami. Petitioner was employed as a bookkeeper by an elderly center from 1986 to 1988, which provided transportation, lunches and recreational activities for senior citizens. The center received funds from the City of Miami to operate by being reimbursed for monies paid to vendors. From 1986 to 1988, the center was performing poorly economically. In order to obtain additional monies, the invoices of vendors who did business with the center were inflated or increased and submitted by the center to the City of Miami for reimbursement. As bookkeeper, Petitioner was instrumental in the scheme. The difference between the actual cost and the inflated cost was retained by Petitioner and her boss and distributed at the end of the year to the center's employees, including Petitioner and her boss. Petitioner and her boss controlled the illegally obtained funds. At the end of the center's budget year, which was June 30th of each year, the center was withholding back payments to the U.S. Internal Revenue Service (IRS), using the funds held to pay salaries. As a result, a debt to IRS was created, and when IRS attempted to collect on the debt in 1988, the scheme was discovered and stopped. Petitioner cooperated fully with the State Attorney's Office. At the time of her conviction, Petitioner was licensed by Respondent as a real estate salesperson. Less than a month after her plea of nolo contendere to the grand theft charge and sentence, in June 1991 Petitioner notified Respondent of her conviction and sentence in accordance with statutory provisions regulating the practice of her profession as a licensed real estate salesperson. No evidence of any other conviction was presented. Subsequently, on or about October 30, 1991, an administrative complaint was filed by Respondent against Petitioner based upon her conviction. Petitioner admitted the allegations contained in the administrative complaint. She saw no need to deny the allegations, since she had reported the incident to Respondent. To Petitioner's shock and surprise, in a Final Order dated February 14, 1992, Petitioner's license as a real estate salesperson was revoked by Respondent. Petitioner had been licensed for 13 years without a complaint being filed against her. On February 13, 1992, Petitioner's probationary terms were modified by the court due to her inability to pay the $19,864.52 restitution. The modification included, among other things, that Petitioner was only required to pay monthly the restitution to individuals, which totaled $1,700, that the restitution to the City of Miami could be paid through community service at $10.00 per hour for each month that Petitioner was unable to pay, and that probation could be terminated early after 30 months if restitution was paid in full. By March 9, 1993, Petitioner had completed 500 hours of community service in accordance with the original court order, and for compliance with the modified court order, she had completed 235 hours of community service and paid $125.00 restitution to individuals. Prior to her conviction and license revocation, in 1989. Petitioner was employed with a real estate broker at Allied Associates of the South, Inc. (Allied Associates), in Miami Springs, Florida, as a sales associate, and continued in that position until sometime in 1991 when, due to economic constraints on Allied Associates, the broker cut her staff, choosing a more experienced salesperson over Petitioner. During her employment as a sales associate, no complaints were received by Allied Associates against Petitioner, and no money which was entrusted to her was reported missing. Allied Associates received many complimentary remarks from clients and real estate brokers alike. Subsequently, in November 1991, the broker re-employed Petitioner as a sales manager at Allied Associates. Petitioner informed the broker of her conviction and the circumstances of her conviction. The broker has allowed Petitioner to manage the financial books of the business with no problems. And Respondent has audited Allied Associates' financial books without citing a problem. Furthermore, Petitioner has handled escrow deposits and cash without any problems. Since October 1992, Petitioner has been working with Allied Associates as a sales manager on a part-time basis due to financial constraints experienced by Allied Associates. She has continued to handle escrow deposits and cash without any problems. Moreover, the broker/owner of Allied Associates has no hesitation in putting Petitioner in a position of trust. Further, Petitioner has assisted in the guidance of Allied Associates' sales associates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order allowing Petitioner to take the real estate salesperson's examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October 1993. ERROL H. POWELL 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 29th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7368 Petitioner's proposed findings of fact. Petitioner's proposed findings of fact consists of one paragraph with several sentences. 1. Substantially adopted in findings of fact 2, 4, 5, and 7-14; but rejected, regarding the second sentence, as unnecessary to the determination of the issues of this case and rejected, regarding the sixth sentence, as constituting argument, conclusions of law, or recitation of testimony. Respondent's proposed findings of fact. Substantially adopted in finding of fact 1. Substantially adopted in findings of fact 1 and 4. Substantially adopted in finding of fact 4. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 11. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9; but rejected, regarding notice and failure of Petitioner to appear at the informal hearing, as unnecessary to the determination of the issues of this case. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. Substantially adopted in finding of fact 5; but rejected, regarding the first sentence, as constituting argument, conclusions of law, or recitation of testimony and rejected, regarding the last sentence which indicates that only Petitioner received and used the monies, as contrary to the evidence present. Substantially adopted in finding of fact 8. Substantially adopted in findings of fact 12-14. Note: Respondent proposed finding of fact is very close to constituting recitation of testimony. Substantially adopted in finding of fact 13. Note: Respondent proposed finding of fact is very close to and constituting recitation of testimony. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. COPIES FURNISHED: Marina P. Cintron 151 Fairway Drive #2301 Miami Springs, Florida 33166 Manuel E. Oliver Assistant Attorney General 400 West Robinson Street, Suite 107 South Orlando, Florida 32801 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
