The Issue The issue presented is whether Charles Simon violated subsections 475.25(1)(b) and (f), Florida Statutes (1985) by pleading guilty to crimes involving moral turpitude or fraudulent and dishonest dealing, i.e. grand theft and trafficking in stolen property by reissuing and refunding airline tickets without making payment for them.
Findings Of Fact Charles Simon was at the times material to this proceeding licensed as a real estate broker in the State of Florida holding license number 0123689. The last license was issued to him as a broker at 90 Beacon Boulevard, Miami, Florida 33135. On about October 15, 1986, Mr. Simon pled guilty to six counts of an indictment alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Act), grand theft and trafficking in stolen property for issuing and refunding of airline tickets without making payment for them. Adjudication of guilt was withheld and Mr. Simon was placed on community control for a period of twenty-four months to be followed by a period of probation of eight years, and he was ordered to pay $50,000 in restitution and court costs. By letter dated October 9, 1986, Respondent informed the Commission of having pleaded guilty to a felony. By letter dated January 6, 1987, Mr. Simon wrote again to the Commission, stated that he had received no reply to his letter of October 9, 1986 and enclosed a carbon copy of the October 9, 1986 letter. The Commission never received his first (October 9, 1986) letter, although it did receive a copy of it when attached to the January 6, 1987 letter. The Department relies solely upon the records of the conviction to make its case. It did not dispute Mr. Simon's explanation of the events underlying his guilty plea. Mr. Simon's version of the events is accepted, in part because his testimony was not contested by the Department, and in part because the explanation is plausible. In May of 1983, Mr. Simon's wife owned a travel agency in Dade County. His real estate office was located in the same suite of offices. While clerical employees of the travel agency would sometimes perform work for the real estate office they were wholly separate businesses. Mr. Simon was not an officer or employee of the travel agency and received no money from it. In May, 1983 Mr. Simon's wife put the agency up for sale. Travel agencies are approved by the Air Traffic Corporation (ATC) to write airline tickets on generic ticket stock if they meet certain requirements. ATC affiliation is important to a travel agency because it makes accounting to airlines for tickets sold much simpler. ATC serves as a clearinghouse; at the end of the week a travel agency sends one check to ATC for all tickets written during the week. ATC separates the billings according to airline, and writes one check to each airline for all tickets sold by the agents belonging to ATC. Blank ticket stock is valuable and purchasers must qualify through ATC to buy a travel agency that is an ATC member. Otherwise an untrustworthy new owner could write tickets out, collect money and never pay the ATC who in turn would not be able to pay the airlines. Mrs. Simon was familiar with people who expressed an interest in purchasing her agency, but they asked her not to tell ATC of the sale. When notified of the impending sale ATC would investigate the qualifications of the proposed new owners, and their previous employer or present employer would be contacted by ATC. The potential buyers were currently working at another travel agency. They wanted to buy Mrs. Simon's agency and move their clients to their new agency (Mrs. Simon's agency). They did not want to tip off their present employer of their intentions by having ATC contact the present employer. Mrs. Simon agreed to withhold notification to ATC to facilitate the sale of the travel agency. After the ownership of the travel agency was transferred and most of the purchase price had been paid, Mrs. Simon was informed that the new owners had ticket stock from other travel agencies at the agency she had sold. Although this is not a violation of any statute, it violates ATC rules and alerted Mrs. Simon that something was wrong. She realized that the reason the purchasers did not want to notify the ATC of the transfer was that they were engaging in a "bust out" of the agency, i.e., issuing valid airline tickets without receiving payment for them. The tickets would then be returned to the airlines for cash refunds (although they had never been paid for) or resold to others at less than their face value. Ultimately, ATC revoked the agency's authority to issue tickets, but by then the owners had defrauded the airlines of many thousands of dollars. Mrs. Simon panicked and Mr. Simon agreed to try to handle the situation. Instead of reporting the matter to the police Mr. Simon tried to cover it up so that Mrs. Simon would not be implicated in wrongdoing. Precisely what Mr. Simon did in his attempt to keep his wife from being implicated in the purchasers' scheme was not explained at the hearing. Those individuals involved in the "bust out" were ultimately arrested and convicted. Mr. Simon was also charged because of his involvement with the sale after Mrs. Simon discovered the purchasers' scheme. Under the sentencing guidelines the charges made against him would have called for a sentence of six years in jail. The state attorney's office agreed to two years of community control, eight years probation and $50,000 restitution to the airlines, if Mr. Simon would plead guilty to the charges rather than require a trial; the state attorney also agreed that no charges would be filed against Mr. Simon's wife in return for his guilty plea. The state attorney's office further agreed to a withholding of adjudication of guilt so that Mr. Simon's real estate license would not be affected. Based on 1) the cost of going through a trial to defend himself and potentially another legal proceeding for the defense of his wife (which would exceed $50,000) and, 2) his erroneous belief that a guilty plea with a withholding of adjudication would not affect his real estate license, Mr. Simon agreed to the state attorney's offer as being in his best interest even though he believed that he had done nothing illegal. Since that time Mr. Simon's community control has been terminated and he has been placed on regular probation, which merely requires a once a month report to a probation officer which can be done by mail. It has also been agreed that Mr. Simon may return to England to live. The lightness of the sentence and the reduction of the period of community control corroborates Mr. Simon's argument that the state attorney's office knew that he had not been involved in the fraudulent plan to "bust out" his wife's travel agency, although he was not entirely forthcoming when the purchaser's plan was discovered.
Recommendation It is RECOMMENDED that a final order be entered finding Mr. Simon guilty of violation of subsection 475.25(1)(b), Florida Statutes as charged in Count I of the administrative complaint and guilty of violation of subsection 475.25(1)(f), Florida Statutes as charged in Count II of the administrative complaint and that the real estate broker's license held by Mr. Simon be revoked. DONE and ORDERED this 21st day of September, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1987. APPENDIX The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Proposals of the Petitioner's: Rejected as unnecessary. Covered in Finding of Fact 1. Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. COPIES FURNISHED: Charles Simon 90 Beacon Boulevard Miami, Florida 33135 Mr. Charles Simon 10435 S.W. 76th Street Miami, Florida 33173 James H. Gillis, Esquire Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent's real estate broker's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Fred J. Will was a licensed real estate broker in the state of Florida having been issued license number 0142418, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida 32014. At all times material to this proceeding, Richard P. Pollock was a licensed real estate salesman in the state of Florida having been issued license number 0139861, c/o Fred J. Will, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida, with a last listed home address of Post Office Box 2085, Flagler Beach, Florida 32036. Either in late December 1987 or early January 1988, Pollock approached Will with the idea of opening a real estate office using Will's real estate broker's license wherein Pollock would run the office since Will was currently employed managing the self storage facility of Regency Health Care Centers, Inc. In late January 1988, Will filed a Request For License or Change of Status Form using license number 0142418 wherein he advised the Petitioner that he would be operating under Will Realty located at 326 1/2 South Beach Street, Daytona Beach, Florida. Upon opening the offices at 326 1/2 South Beach Street, Will opened an operating or business bank account and an escrow bank account for the Will Realty at the Commercial National Bank (Commercial) Only Will was authorized to write checks on the excrow account. There was insufficient evidence to show whether any funds were ever deposited in the business or escrow account at Commercial. Once the office and bank accounts were opened, Will left the daily operation of the office to Pollock and was at the office only a couple of times between the time it was opened in late January 1988 and when it was closed around April 23, 1988. The "agreement", as such, between Will and Pollock was a 50/50 "split" once the business "got going". Will did not receive any compensation from Pollock for the "use of his license". Will did not receive any money from Pollock in regard to Will Realty, personally or for deposit in either bank account at Commercial. The "agreement" was that Will would allow Pollock to "work under" his real estate broker's license. Will did not have any knowledge of the advertising being used by Pollock for Will Realty such as newspaper ads or business cards until just before the office closed in April 1988. Will did not have any knowledge of the forms being used by Pollock for Will Realty such as contracts or agreements for advance fee arrangements or receipts evidencing payment of such fee until just before the office closed in April 1988. Additionally, Will did not have any knowledge of the advance fee arrangement which Pollock may have had with prospective tenants as payment for securing rentals until just before the office closed in April 1988. Will did not have any knowledge of Pollock opening the bank accounts at Coast Federal Savings and Loan Association (Coast) in the name of Will Realty until just before the office closed in April 1988. None of the funds received by Pollock from prospective tenants while with Will Realty were deposited in the accounts at Commercial. Nor did any of the funds collected by Pollock from prospective tenants while he was with Will Realty go to Will personally. During the latter part of March 1988, Donna Elliott approached Pollock through Will Realty for the purpose of finding a home to rent. Pollock arranged for Edward R. Brown to show Elliott a home he had for rent. Elliott eventually rented this home and gave Pollock a check in the amount of $100.00 dated March 26, 1988 as a deposit on the home. On March 31, 1988 Elliott mailed Pollock another check in the amount of $1,000.00 as rent for the Brown home. The funds from these two checks were deposited in the account at Coast. Brown experienced some difficulty in getting Pollock to pay the deposit and rent collected from Elliott. However, once Will became aware of the situation he demanded that Pollock pay over the deposit and rent and, as a result of Will's effort Brown received $575.00 from Pollock. After paying Brown the $575.00 Pollock disappeared and Brown demanded the balance from Will since Pollock was working under Will's real estate broker's license. At first, Will agreed but later on advice of counsel declined to pay on the basis that it was not his responsibility. Brown filed suit and was awarded a judgment for the balance which Will paid. Around the middle of April 1988 Diane Smith approached Pollock for the purposes of renting a home. Smith paid Pollock an advance fee of $75.00 for service to be rendered by Pollock in securing her a rental home. However, before Pollock found a rental home for Smith he disappeared without returning Smith's fee. Within a short period after Smith paid the advance fee she went to the office of Will Realty only to find it closed and Pollock gone. There was no evidence that Smith made a demand on Will for the return of the advance fee paid to Pollock. After Will became aware of the situation he called Petitioner's Orlando office and was informed by Judy Smith that he should close the office immediately. Will followed this advice and closed the office sometime around April 23, 1988. As soon as Will began to receive complaints from Pollock's clients he got involved with Pollock and attempted to correct the problems but Pollock disappeared before Will could correct the situation. There was insufficient evidence to show that while Pollock was at Will Realty, any of his prospective tenants, other than Smith, specifically Catherine Vick, failed to receive reimbursement for any advance fee paid to Pollock where rentals were not obtained for the prospective tenant. Will was not directly involved with any of the transactions between Pollock and the prospective tenants and did not have any knowledge of these transactions until shortly before Pollock disappeared and Will Realty was closed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Fred J. Will guilty of violating Section 475.25(1) (d) and (e), Florida Statutes, and for such violation impose an administrative fine of $500.00 and issue a reprimand. In recommending the reprimand I have taken into consideration the harshness of a suspension or revocation and feel that under the circumstances of this case that a reprimand and a fine is more appropriate. See: Webb v. Florida Real Estate Commission, 351 So.2d 71 (2 DCA Fla. 1977). It is further RECOMMENDED that Counts VI, IX and XIV of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 22nd day of February, 1990. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Robert W. Elton, Esquire 648 S. Ridgewood Avenue Daytona Beach, Florida 32014 Fred J. Will 2281 Carmen Daytona Beach, Florida 32119
The Issue Whether Respondent's license as a real estate broker should be suspended or revoked, or the licensee otherwise disciplined, for alleged violation of Chapter 475, Florida Statutes, as set forth in Administrative Complaint, dated December 4, 1981. This proceeding involves allegations by the Florida Board of Real Estate (now Florida Real Estate Commission) that Respondent, James R. Siebert, violated Subsection 475.25(1)(h) Florida Statutes, by sharing a commission with a person not properly licensed under the real estate law, and that he employed a person as a salesman who is not the holder of a valid license, in violation of Subsection 475.42(1)(c) , Florida Statutes, and therefore in violation of Subsection 475.25(1)(a), Florida Statutes. The incident which prompted the Administrative Complaint involved an auction sale of a restaurant in Brooksville, Florida which was conducted by an auctioneer who did not have a license to practice real estate in Florida. Respondent requested an administrative hearing and filed an answer to the Administrative Complaint admitting the occurrence of the auction, but denying that it involved the sale of real estate.
Findings Of Fact Respondent, James L. Siebert, is a licensed real estate broker at Orange Lake, Florida, and was so licensed at all times relevant in this proceeding. (Stipulation) On several occasions prior to February 21, 1981, Respondent had gratuitously assisted Albert W. (Billy) Mitchell, an auctioneer, in conducting auctions by serving as a "ring man" and clerk. A "ring man" normally is one of several such individuals at an auction who assists the auctioneer by encouraging bidding and identifying bidders. Mitchell is not licensed under real estate laws of Florida, but operates under a local occupation license. None of the prior auctions in which Respondent assisted Mitchell involved the sale of real estate. (Testimony of Respondent, Mitchell) On January 28, 1981, Mitchell entered into an "auction sale contract" with Welberta Pruitt whereby Mitchell agreed to sell at auction to the highest and best bidder: . . . the following described business and personal property owned by the Party of the First Part: Pruitts Golden Wagon Steak House Restaurant and Contents on attached inventory list and located 1702 Howell Avenue, Brooksville, in Hernando County, State of Florida. The terms of this sale shall be 10 percent of the amount of the purchase price to be paid on day of sale and the balance to be paid as follows: On delivery of title - There is a mortgage on the business of $67,838.20 with interest at 8 3/4 percent on the unpaid balance. The attachment to the contract listed various items of food supplies and restaurant furniture and equipment, plus decorative items of personal property. Pruitt and her husband had purchased the real property on which the restaurant building was located under an agreement for deed in 1979 which provided that the Pruitts would make the payments on a mortgage of about $67,000 from the sellers to the First Federal Savings and Loan Association of Citrus County and, when such mortgage was paid in full, the sellers would convey title to the property by warranty deed. The contract reflected that the total purchase price of the property was $75,000, and that a down payment had been made in the sum of $7,000. Mrs. Pruitt owned furniture, fixtures and equipment which she transported from Tennessee to operate a restaurant on the premises. (Testimony of W. Pruit Kelly, Mitchell, Johnston, Respondent's Exhibits 1,2) It was the understanding of the parties to the auction agreement that only the personal property in and around the restaurant building would be sold to the highest bidder, and it was anticipated that the successful bidder would take up the mortgage payments on the real property. The equity which the Pruitts had acquired by prior mortgage payments was to be "given" to whoever purchased the "business" at the auction. Accordingly, on February 20, 1981, the day preceding the auction, Mrs. Pruitt issued a "notice" that she would sell her "entire Restaurant, business, furnishings, equipment, and Inventory at Public Auction". The notice further stated that she would give her equity in the real estate to the purchaser on which there was an existing mortgage of $67,821.36 "that you may assume". The noticewas placed on the door of the restaurant. In addition, Mitchell issued a brochure advertising the auction wherein it was stated that the "entire business, furnishings, equipment, and stock" would he sold at absolute auction and that the purchaser would have the "privilege of assuming the payments on the existing mortgage." Mitchell had Respondent's name placed at the bottom of the brochure without Respondent's knowledge because he thought it would be a good advertisement for him. (Testimony of Mitchell, W. Pruitt, Petitioner's Exhibit 3, Respondent's Exhibit 3) Mitchell asked Respondent to assist at the Pruitt auction and told him that since Mrs. Pruitt and her attorney were having a disagreement, it might be necessary for Respondent to write the contract resulting from the auction. No fee for Respondent's services was discussed prior to the auction. (Testimony of Mitchell, Respondent) On February 21, 1981, the auction was conducted at the restaurant in Brooksville, and Respondent was present to act as a "ring man". There were only about 3 individuals who entered bids at the auction. Prior to receiving bids, Mitchell announced that he was auctioning the contents of the business and that whoever bought the property would take over the payments on the mortgage. The successful bidder was Robert Shrader, who bid $9,600. He made a 20 percent down payment at the time in the amount of $1,920 which Mitchell retained as a commission on the sale. Mitchell had not described the real estate at the auction, but merely stated that he was auctioning the business and that Mrs. Pruitt would give the successful bidder her equity in the property. After accepting Schrader's bid, Mitchell gave the figures on the sale to Respondent who prepared a standard contract for sale and purchase of the real estate in the total amount of $77,421.36. The contract reflected a deposit of $1,920 to be held in escrow by Billy Mitchell and Associates, that the contract was subject to assumption of a mortgage of $67,821.36, and that there would be a balance of $7,680. Shrader and Mrs. Pruitt signed the agreement on February 21, 1981, which was witnessed by Mitchell and Respondent. Although no brokerage fee was listed, Respondent signed as broker on the contract. He testified at the hearing that he had done this out of habit. A real estate contract was prepared rather than merely a bill of sale of the personal property in order that the parties would have the figures they needed to close which they could take to the closing attorneys. After the auction, Mitchell gave Respondent $200 as a gift for his gasoline and other expenses on the Pruitt and prior auctions. Respondent testified, and Mitchell confirmed, that the latter insisted that he accept that amount as reimbursement for expenses. (Testimony of Mitchell, Respondent, Petitioner's Exhibit 1) On April 6, 1981, Joseph P. Johnston, an attorney in Brooksville, closed the transaction by means of a bill of sale for the furnishings and equipment in Pruitts restaurant, and assignment of the Pruitt interest in the mortgaged real property. The closing statement reflected that a "broker's commission" in the amount of $1,920 was held by the "broker" to apply on commission, In actuality, the sum retained by Mitchell as a commission was based solely upon a percentage of the personal property sold at auction. (Testimony of Johnston, Mitchell, Petitioner's Exhibit 2)
Recommendation That the Florida Real Estate Commission dismiss the charges against Respondent, James R. Siebert. DONE and ENTERED this 3d day of June, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 3d day of June, 1982 COPIES FURNISHED: Salvatore Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harvey R. Klein, Esquire Klein & Klein 333 North West 3rd Avenue Ocala, Florida 32670 Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all times relevant to this proceeding, the Respondent, Jack Folk, has held an active real estate brokers license. From February 9, 1978, till December 14, 1978, Mrs. Evelyn Wilhelm, the Complainant, worked for the Respondent as a real estate broker. Pursuant to an employment agreement signed by Mrs. Wilhelm and the Respondent, she was to receive 80 percent commission on sales subject to exceptions for sales made by the Bo-Jac Realty Office or Bo-Jac Realty Listings. Out of the 80 percent, Mrs. Wilhelm was expected to pay all of her expenses. Due to continuing disagreements between the Complainant and Mr. Folk, Mrs. Wilhelm listed her license with another broker on December 14, 1978, without informing the Respondent of such action within 30 days prior to such termination as required by their employment agreement. The broker that she listed her license with was not a member of the Multiple Listing Service and Mrs. Wilhelm continued to use the Respondent's Multiple Listing Service after she had severed their professional relationship. Between December 18, 1978 and January 11, 1979, the Complainant continued to take referral calls from Respondent's office. When the Respondent learned from Mr. Wilhelm, the complainant's husband, on January 11, 1979, that the Complainant was registered with another broker, he immediately notified the Florida Real Estate Commission of such dual registration. At the time Mrs. Wilhelm left the Bo-Jac office, there were five pending or completed real estate closings in which she was involved and was owed money by the Respondent. One of these was designated as "Hart-Esposito" by the parties and is referred to as "Hart" in the Administrative Complaint. The Respondent was reluctant to pay the commissions to the Complainant because of legal advice he had received from his attorney concerning Section 475.42(1)(d), Florida Statutes and a possible breach of the employment agreement. This information was forwarded to the Complainant on January 25, 1979, via letter from Mr. Robert Saylor, attorney fro the Respondent. Upon the advice of counsel, Mr. folk deposited the disputed commissions in an escrow account and through his attorney notified the parties of this occurrence. The Complainant retained counsel who filed suit on the commissions on March 2, 1979. The Respondent counter-claimed and presented affirmative defenses outlining his position concerning the alleged breach of the employment contract and the dispute over the percentage of commissions due. Counsel for both parties entered into settlement negotiations which led to a voluntary dismissal by the Complainant on January 15, 1980 of the pending civil action. Although the civil action was filed by the Complainant, the Respondent also contemplated filing suit over the commissions. The Complainant simply filed her action before the Respondent's counsel file his.
Recommendation Therefore, it is RECOMMENDED: That the complaint filed against the Respondent, is DISMISSED. DONE and ORDERED this 26th day of November, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980. COPIES FURNISHED: Salvatore A. Carpino, Esquire C. B. Stafford, Executive Director Staff Attorney Florida Real Estate Commission Department of Professional 400 W. Robinson Street Regulation Post Office Box 1900 2009 Apalachee Parkway Orlando, Florida 32801 Tallahassee, Florida 32301 Robert L. Saylor, Esquire 618 U.S. Highway One Post Office Box 14667 North Palm Beach, Florida 33408
Findings Of Fact The Respondent is a registered real estate broker. He has been actively engaged in his profession in the Broward County area for many years. Sometime prior to 1978, he and his wife sold a residential property at 50th Court, Ft. Lauderdale to Mrs. Virginia Moore, and her husband, who was then employed by the Respondent as a real estate salesman. On or before the closing of that sale, the Respondent entered into a written agreement with Mrs. Moore whereby he agreed to buy back the premises from Mrs. Moore should she ever desire to sell it. Sometime subsequent to the closing of that transaction, Mrs. Moore was divorced and retained ownership of the property which is the subject of this proceeding, holding it for rental income. Sometime in the spring or summer of 1978, Mrs. Moore found herself in financially straitened circumstances and decided to place the home on the market. She listed it with the Respondent as her broker who in turn listed the property with the Multiple Listing Service (MLS). In late July, 1978, another real estate sales firm, Sell America (broker Jay Magid), obtained a prospective purchaser, Mrs. Patricia Cressotti. After some negotiations between Mrs. Moore and Mrs. Cressotti and their respective agents (the Respondent and James Pryde), Mrs. Moore and Mrs. Cressotti ultimately reached an agreement on terms of purchase and executed the deposit receipt and sales contract represented in Exhibit one. The purchaser, Mrs. Cressotti, was to purchase the house contingent on receiving approval for FHA financing under a special program for low-income loan applicants. She sought that approval from FHA and was rejected on at least four (4) occasions between August, 1978 and January, 1979. She re- applied for her loan on each of those occasions, attempting to remedy the objections to her qualification as a mortgagor for the subject premises. Sometime contemporaneous to the execution of the contract, the prospective purchaser and her agent Mr. Pryde, had assured Mrs. Moore that the closing could be effected within thirty (30) to sixty (60) days from the date of the contract. After waiting a substantial period of time (three to four months) for the closing of the transaction, Mrs. Moore experienced increasing financial difficulties to the extent that she become delinquent with her mortgage payments on the subject premises while waiting for Mrs. Cressotti's loan approval. Accordingly, after consulting with the Respondent, on November 27, 1978, she directed Mr. Nies to send a letter to Mrs. Cressotti, informing her that she would be allowed until December 12, 1978 to consummate the transaction, after which time, if no closing occurred, Mrs. Moore would consider the contract void and seek an alternative buyer. No objection was raised by the purchaser or her agent to this announcement, but Mrs. Cressotti's agent assured the Respondent and Mrs. Moore that they still expected to close the transaction by December 12, 1978. It proved impossible to close the transaction by that date however, since Mrs. Cressotti's FHA loan approval was again refused. She did not ultimately obtain approval of her loan application until January 23, 1979. In the meantime, on December 14, 1978, Mrs. Moore, after voiding the contract and pursuant to the above-mentioned written re-purchase agreement with Mr. Nies, sold Mr. Nies the subject property. The Respondent considered himself bound by that repurchase agreement to purchase Mrs. Moore's property if it had not been sold to another purchaser in a reasonable time, which it had not. Mrs. Moore sold to the Respondent freely and voluntarily, knowing he was buying for purposes of investment, was happy with the price and terms he offered and was relieved to thus alleviate her financial burdens. She made $973.00 more profit from selling to Mr. Nies than if she had sold to the original prospective purchaser, Mrs. Cressotti. She had in no way been coerced into voiding the contract with Mrs. Cressotti in order to sell to the Respondent. After purchasing the property, the Respondent advertised it on the open market, including with MLS, and after approximately three weeks found a buyer and contracted to sell it to a Mr. and Mrs. Bales. His sale to the Bales was made pursuant to and after his advertisement and listing the property with the MLS, rather than due to any preconceived arrangement with the Bales to obtain the property for and on their behalf by suborning the breach of the Moore/Cressotti contract. After consulting with his attorney and being advised that a fifteen (15) day notice was sufficient to terminate the contract and after being ordered by Mrs. Moore to send the November 27, 1978 letter, the Respondent genuinely believed the contract validly terminated. Throughout the course of the pending Moore/Cressotti transaction the Respondent actively sought to assist in the culmination of the deal. The witness for Mrs. Cressotti's putative lender established that the Respondent repeatedly contacted her to check on the progress of the loan application. He was helpful and all his contacts were in the vein that he was anxious for the transaction to close. The lender's representative ultimately advised Mr. Nies on December 10, 1978 that, once again, the loan application had been rejected and that she did not expect it to be successful. In short, after being originally assured by Mrs. Cressotti's agent that the deal would close in thirty (30) to sixty (60) days and waiting a substantial period of time longer than that, Mrs. Moore voided the contract and sold to Nies voluntarily and under no coercion. Nies advertised the property in good faith in the MLS service, and obtained a previously unknown buyer. He realized little profit from the sale since he had to expend $2,213.63 to repair the vandalized property for sale. It is significant that in the related suit in circuit court, Mrs. Cressotti was dropped as a party plaintiff and the judgement won by Sell America for breach of contract and real estate commission lies solely against Mrs. Moore. The Respondent was never sued for breach of the subject contract or for the real estate commission found to be owed to Sell America. It should finally be pointed out that no real damage was suffered by any party to the transaction. Mrs. Cressotti was represented by her own broker and only paid a $100 deposit in connection with the contract, which was retained by her broker and which she ultimately was refunded. She was able to buy another house in the same area through Sell America and paid Sell America a commission on that transaction. In the instant proceeding Mrs. Cressotti was not a complaining witness, rather the proceeding was initiated by Sell America, not Mrs. Cressotti or Mrs. Moore. The Respondent has had no prior complaints lodged against him with the Board of Real Estate or with the local Board of Realtors in his community and his character witnesses established that he enjoys an outstanding reputation for honesty and integrity in his community.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of counsel, it is therefore RECOMMENDED: That the administrative complaint be dismissed with prejudice. DONE AND ENTERED this 19th day of April, 1982 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1982. COPIES FURNISHED: Harold M. Braxton, Esquire 45 Southwest 36th Court Miami, Florida 33135 S. Ralph Fetner, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frank C. Walker, Esquire Post Office Box 2397 Ft. Lauderdale, Florida 33303 Mr. C. B. Stafford Executive Director Board of Real Estate P.O. Box 1900 Orlando, Florida 32801 Frederick Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent Jimmy D. Napier is a licensed real estate broker having been issued license No. 0063347. His license has been inactive since March 31, 1981. In early May of 1980, respondent entered into a two-year lease of real property owned by Rosemary Drake, with an option to purchase it. The property was encumbered at the time by a mortgage in favor of Farmers Home Administration (FHA), and Ms. Drake was in arrears on her mortgage payments. Respondent went to FHA's DeFuniak Springs office to inquire as to the precise amount of the arrearage before executing the lease with option to purchase. Mack Baker, who had charge of the FHA office in DeFuniak Springs, had knowledge of the transaction at the time and discussed it with respondent. On May 17, 1980, respondent entered into a two-year lease of real property in Walton County, Florida, owned by Bobby Joe and Hilda Turner, with an option to purchase it. Petitioner's Exhibit No. 2. One provision of this agreement purported to allow respondent to sublease. The Turners were not delinquent on the FHA mortgage that encumbered the property at the time. Mrs. Turner telephoned FHA's Mack Baker and told him that they planned to rent their home and give an option to purchase. Only after this conversation did she and her husband execute the lease and option. Respondent gave the Turners a check for $3,075 on May 17, 1980, and other consideration subsequently. No commission was paid by any party. Respondent told them that he was a real estate broker buying for his own account, before the lease was executed. Respondent said he would let Mr. Baker know about the transaction and did in fact do so. Since the lease was executed, various people have lived on the property. On June 14, 1980, respondent entered into a two-year lease of real property in Walton County, Florida, owned by Doris A. Stocker, now Wilson, with an option to purchase it. Petitioner's Exhibit No. 1. At the time, the property was encumbered with a mortgage in favor of FHA, and Mrs. Wilson was sometimes in arrears on her mortgage payments. Jack Webster, a licensed real estate broker, had not succeeded in finding a purchaser for Mrs. Wilson's property when he worked as a salesman in the office of another broker with whom Mrs. Wilson had listed the property. After he went out on his own, he introduced Mr. Napier to Mrs. Wilson (then Stocker) and he was present when Petitioner's Exhibit No. 1 was executed. He had told Mrs. Wilson that respondent was a real estate broker buying for his own account. Respondent paid Mrs. Wilson $1,750 on June 14, 1980. No commission was paid by any party. Mrs. Wilson asked respondent whether she should contact Mr. Baker, but respondent said he would handle it. Eventually, Mrs. Wilson deeded the property to respondent. One provision of the lease and option purported to allow respondent to sublease. Somebody else is now living on the property. Fred Thurmond Wakefield II, and his wife, Marie, bought some property in Walton County with money they borrowed from FHA. Eventually they listed the property, encumbered with an FHA mortgage, for sale with Joseph G. Lamerche, Jr., a licensed real estate broker in DeFuniak Springs. Mr. Lamerche read the FHA mortgage, Petitioner's Exhibit No. 3, a form used by FHA in all Florida transactions for the last few years. Paragraph (12) states: Neither the property nor any portion thereof or interest therein shall be leased, assigned, sold, transferred, or encumbered, voluntarily or otherwise, without the writ- ten consent of the Government. The Govern- ment shall have the sole and exclusive rights as beneficiary hereunder, including but not limited to the power to grant consents, par- tial releases, subordinations, and satisfac- tion, and no insured holder shall have any right, title or interest in or to the lien or any benefits hereof. Petitioner's Exhibit No. 3. Mr. Lamerche telephoned Mr. Baker and brought the matter up without, however, mentioning the Wakefield property specifically. Mr. Baker told Mr. Lamerche he was glad respondent had bought the Drake property because of problems with Ms. Drake before the sale. Five or six days later, on February 3, 1981, respondent entered into a two-year lease of the Wakefield property with an option to purchase it. Respondent's Exhibit No. 1. Mr. Lamerche represented the Wakefields when the agreement was executed. Before they signed, respondent told them he was a real estate broker buying for his own account. Mr. Wakefield asked respondent if the transaction was legal and respondent answered that he had done three or four the same way. In all, respondent leased six separate parcels encumbered by FHA mortgages with options to purchase each, and without the written consent of FHA. Typically, the leases called for respondent to make the lessors' FHA mortgage payments. As a result of conversations going back to 1967 with Jerry Ausley, an FHA employee, respondent was under the impression that real estate encumbered by an FHA mortgage could be leased for two years before refinancing was necessary. He did not know that the consent FHA required for a mortgagor to sell property had to be in writing. FHA's Mr. Baker was aware of each of the six transactions. The office which Mr. Baker headed was the appropriate office at which to approach FHA for permission to lease or encumber property mortgaged to the FHA. FHA accepted mortgage payments from respondent for each of the six mortgages. At some point, however, FHA mailed warning letters threatening everyone leasing to respondent with foreclosure. Under FHA rules, Napier was ineligible for FHA loans because his income was too high, his assets were too great, and because he did not reside on any of the six parcels. Nevertheless, FHA eventually permitted respondent to assume the Turner, Wilson, and Wakefield mortgages. Respondents' Exhibit Nos. 2, 3, and 4. Respondent's proposed recommended order has been considered in preparation of the foregoing findings of fact, and respondent's proposed findings of fact have been adopted, in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint filed against respondent. DONE AND ENTERED this 24th day of June, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1982. COPIES FURNISHED: Frederick H. Wilsen, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Russell A. Cole, Jr., Esquire Post Office Box 155 Bonifay, Florida 32425 Carlos B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues presented in This case are whether the Respondents committed the acts alleged in the Administrative Complaint and whether such acts constitute a violation of the statutes. Petitioner submitted post hearing findings of fact in the form of a proposed recommended order To the extent that the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Respondent, Frank R. Jansen, is a broker salesman holding license number 0317199. The Respondent, Lillian LaCrampe, now Soave, is a real estate salesperson holding license number 0137930. In June 1980, Jansen held an individual broker's license in the State of Florida. In late summer of that year, he entered into an agreement with Flora Harwood, a licensed broker in the State of Florida and owner of Select I Realty. Under this agreement, Jansen and Harwood would form a corporation and participate in a brokerage company under the name Select I Realty, in which Jansen would open and operate a branch office of Select I Realty. The exact details of the corporation and the division of shares were not worked out between the parties; however, Harwood undertook to have a corporation formed the name Jansen and Harwood, Inc., and two attempts were; made to register Jansen as a broker with Jansen and Harwood, Inc., doing business as Select I Realty. These applications were rejected by the Florida Real Estate Commission for various reasons, to include the requirement that a corporation operate only in the corporate name and the failure of the applicants to submit corporate papers. The incorporation and application to the Commission were handled by Flora Harwood's attorney. The last denial of the application was on October 22, 1980. During the period the applications were being filed with the Commission, Harwood became disenchanted with the idea of the corporation because of her perception that Jansen was not cooperating with her. Therefore, after the second application was denied, Harwood did not take action to timely file a third application. Although Jansen was aware of the denial of the application, the evidence does not show that he was aware that Harwood delayed the third application. By the end of 1980, Jansen and Harwood had both independently abrogated their agreement, and shortly thereafter Jansen left the business totally. Until he left, Jansen continued to actively manage the branch office of Select I Realty, which he had established and organized and from which he conducted his real estate business as a broker for Jansen and Harwood, Inc. The policy of the Florida Real Estate Commission with regard to applications is that the applicant may operate if a license application is not returned. If the application is returned for correction and corrected and resubmitted timely, the applicant may continue to operate. If the application is not returned in a timely fashion, the applicant may not work. The failure of Jansen and Harwood to eventually incorporate, followed by the severance of their business relationship, intensified the conflict between them, out of which several of the allegations of the Administrative Complaint arose. On September 5, 1980, the Respondent LaCrampe contracted to buy for herself Lot 3 of Ozona Shores from Preston and Grace King. On January 5, 1981, LaCrampe closed the transaction with the Kings. At that closing, a check for $825 in commissions to Select I Realty was disbursed by the closing agent to the Respondent Jansen. Jansen deposited said check to his personal account. Flora Harwood asserted a claim to a share of the commission on the purchase of the property by LaCrampe. When Harwood discovered that this sale had occurred, she checked with the closing agent and found that a commission check had been paid to Jansen. She further discovered that Jansen had deposited this check to his personal account, and because the check was made out to Select I Realty Harwood had the bank take action to collect the $825 and pay it to her, which the bank did. Harwood's claim to the $825 was based upon an office policy applicable to employees which required that commissions on real estate purchases for investment purposes by employees of Select I Realty be shared with the office. However, this contract closed on January 5, 1981, after the relationship between Jansen and LaCrampe had been severed with Harwood. The competing claims between Jansen and Harwood to the $825 in commission are part of the severance of the business relationship between two persons operating as co-brokers. Testimony was received that in the operation of the branch office Jansen had authority to receive checks, deposit checks, and write checks. On or about December 10, 1980, Jansen participated in the rental of a condominium by Eugene Donahue from Glen and Mary Mitchell. The rental contract incorporated an option to purchase. Said rental contract required that Donahue pay $400 per month, $50 of which was a maintenance fee. Jansen received the first check from Donahue in the amount of $400, negotiated the check, and received a bank check in the amount of $350 payable to Glenn Mitchell and $50 in cash. It is asserted in the Administrative Complaint that Jansen received the $50 in cash as a commission payment to which he was not entitled. However, Respondent's Exhibit numbered 4 reflects that Glenn and Mary Mitchell here in arrears on their maintenance payment in the amount of $49.75, and the policy of Coachman Creek Condominium Association was not to grant any approval of lease or sales contracts until all maintenance payments were up to date. Respondent's Exhibit numbered 4 shows that approval of the subject rental contract was granted when Jansen produced the late payment. Several allegations of the Administrative Complaint relate to real estate transactions in which the Respondents Jansen and LaCrampe were involved with Heinz Lehman and allege fraud and misrepresentation arising from failure of Jansen to identify LaCrampe as his mother to Lehman. The first occasion on which Lehman met the Respondents was when Lehman visited a store in a strip shopping center which Jansen was selling as a broker. Lehman testified that Jansen identified LaCrampe at that time as a real estate associate and his "girl Friday." Lehman's testimony revealed that he knew LaCrampe was a real estate salesperson and an associate of Jansen but did not know that LaCrampe was Jansen's mother until after their series of transactions had occurred. Lehman did not buy the strip store but later purchased a condominium through Jansen and then sold it through Jansen after fixing it up. In November 1980, Lehman contracted to purchase Lot 3 of Ozona Shores (see paragraph 8 above) from LaCrampe. On January 5, 1981, after LaCrampe had purchased the property, she in turn sold the property to Lehman on the same day. In November 1980, prior to entering into the contract for the purchase of Lot 3, Lehman had visited Ozona Shores and had looked at several pieces of property. Thereafter, Jansen presented him with the opportunity to purchase Lot The evidence is clear that Jansen never identified Lot 3 on the, ground or by plat to Lehman. Lehman purchased the property without a survey and without reference to any plat. After he had purchased the property, Lehman found that Lot 3 was not tie lot which he though it was. At a later date, after being unable to finance a house on this property for speculative purposes, Lehman let the lot, 90, back to LaCrampe. On or about January 22, 1981, Jansen visited Florence Smith, who was interested in selling a house which she owned at 1550 Laura Street, Clearwater, Florida. Without obtaining a listing contract, Jansen thereafter advised Smith that he had a potential purchaser. On January 29, 1981, Smith contracted to sell her house to LaCrampe for nothing down and a $37,000 mortgage payable to Smith. Thereafter, Smith determined that she would prefer a balloon note, and LaCrampe agreed to a balloon note if the price were reduced to $36,000, to which Smith agreed. This slightly reduced the monthly payments to Smith. On February 12, 1981, LaCrampe contracted to sell this property to Lehman for $5,000 down, assumption of the second mortgage to Smith, and payment of a $1,400 commission by Lehman to Jansen. LaCrampe obtained modification of her contract with Smith to permit LaCrampe to assign her contract to purchase. In this transaction, Jansen did not identify LaCrampe as his mother or as a real estate salesperson and his associate. Jansen did not explain to Lehman that the money which Lehman paid down was to be paid to LaCrampe. On or about March 10, 1982, Leo Huddleston, an investigator for the Department of Professional Regulation, visited Jansen's office at the address at which Jansen was registered. Huddleston did not find the required sign at the office identifying it as that of Frank Jansen, a real estate broker. At that time, Jansen had registered as broker for Suncoast Investments and Realty, Inc., and was renting office space with telephone-answering and secretarial services in an office suite complex. Although the building directory listed the suite as the office of Jansen as a real estate broker, the office suite did not have Jansen's real estate brokerage sign. When this matter was brought to Jansen's attention, an appropriate sign was provided. In November 1980, the Respondent LaCrampe was licensed as a real estate salesperson with Jansen and Harwood, Inc.
Recommendation Having Found the Respondent, Frank R. Jansen, in technical violation of Rule 2IV-10.24, Florida Administrative Code, an thereby Section 475.25(1)(e), Florida Statutes, it is recommended that Jansen receive a cautionary letter. Having found the Respondents, Frank R. Jansen and Lillian LaCrampe, now Soave, guilty of one violation each of Section 475.25(1)(b), Florida Statutes, it is recommended that their licenses be suspended for a period of one year. DONE and RECOMMENDED this 16th day of August, 1983, in Tallahassee Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1983. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. Frank R. Jansen 108 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Ms. Lillian LaCrampe Soave 114 Harbor Drive Post Office Box 247 Ozona, Florida 33560 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION DEPARTMENT OF PROFESSIONAL REGULATION, FLORIDA REAL ESTATE COMMISSION Petitioner, vs. CASE NO. 0013099 0017680 FRANK R. JANSEN and 0021257 LILLIAN LaCRAMPE DOAH NO. 82-2891 Respondent. /
Findings Of Fact George A. Heyen is a duly registered real estate salesman with the Florida Real Estate Commission, and was so registered and has been so registered continuously since October 1, 1972, as evidenced by Petitioner's Exhibit number 1. While serving in the capacity as a real estate salesman, the Respondent entered into a listing agreement with one Thomas S. Bowers and Brenda L. Bowers, his wife. This agreement was drawn on December 11, 1973 and is Petitioner's Exhibit number 4. On February 6, 1974, a purchase and sell agreement was drawn up by the Respondent and entered into between Maria A. Hindes and the Bowers. This purchase and sell agreement is Petitioner's Exhibit number 3. This contract of February 6, 1974 was submitted to Molton, Allen and Williams, Mortgage Brokers, 5111 66th Street, St. Petersburg, Florida. The contract, as drawn, was rejected as being unacceptable for mortgage financing, because it failed, to contain the mandatory FHA clause. When the Respondent discovered that the February 6, 1974 contract had been rejected, a second contract of February 8, 1974 was prepared. A copy of this contract is Petitioner's Exhibit number 5. The form of the contract, drawn on February 8, 1974, was one provided by Molton, Allen and Williams. When, the Respondent received that form he prepared it and forged the signature of Mr. and Mrs. Bowers. The explanation for forging the signatures as stated in the course of the hearing, was to the effect that it was a matter of expediency. The expediency referred to the fact that the parties were anxious to have a closing and to have the transaction completed, particularly the sellers, Mr. and Mrs. Bowers. Therefore, in the name of expediency the signatures were forged. Testimony was also given that pointed out the Bowers were very hard to contact in and around the month of February, 1974, and some testimony was given to the effect that the Bowers made frequent trips to Ohio, but it was not clear whether these trips would have been made in the first part of February, 1974. The Bowers discovered that their name had been forged when they went to a closing on April 11, 1974. They refused to close the loan at that time. On April 24, 1974, a new sales contract was followed by a closing which was held on April 26, 1974 and a copy of the closing statement is Petitioner's Exhibit number 6. The Respondent has received no fees or commissions for his services in the transaction and there have been no further complaints about the transaction. Prior to this incident, the Respondent, George A. Heyen, was not shown to have had any disciplinary involvement with the Florida Real Estate Commission and has demonstrated that he has been a trustworthy individual in his business dealings as a real estate salesman.
Recommendation It is recommended that the registration of the registrant, George A. Heyen, be suspended for a period not to exceed 30 days. DONE and ENTERED this 8th day of April, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 George A. Heyen c/o Gregoire-Gibbons, Inc. 6439 Central Avenue St. Petersburg, Florida 33710
The Issue Whether the Petitioner meets the qualifications for licensure pursuant to Chapter 475, Florida Statutes.
Findings Of Fact On April 2, 1987, in Pinellas County, Florida, the Petitioner entered a nolo contendere plea to a charge of exposure of sexual organs, a violation of Section 800.03, Florida Statutes. On or about August 17, 1987, the Petitioner filed an application for licensure as a real estate salesman. In response to a question involving prior criminal violations, the Petitioner informed the Respondent of the past violation and his nolo contendere plea. On January 5, 1988, through its legal advisor, the Respondent notified the Petitioner that his application for a real estate license was denied because of the nolo contendere plea to the indecent exposure charge. The Petitioner requested a formal administrative hearing. During the administrative hearing, the Petitioner testified that on the date of the alleged criminal violation, he stopped on his way to shopping mall to relieve himself in a public restroom located in Freedom Lake Park. While in the restroom, he was approached by a man who strongly implied he wanted to see the Petitioner's sexual organs. At first, the Petitioner did not respond to the request. He then told the man "no" and went to use the urinal. The other man identified himself as a police officer and placed the Petitioner under arrest for exposure of sexual organs. Once charged with the offense, the Petitioner had to decide whether to contest the charge by requesting a trial or to enter into a plea bargain agreement. The Petitioner was a high school guidance counselor at the time of the arrest. Because of his employment, he was concerned about the notoriety a trial involving sexual misconduct would bring and its damage to his career. He was also concerned about the effects of a trial upon him and his family. The terms of the plea agreement were that if he were to enter a nolo contendere plea, adjudication of guilt would be withheld by the court. He would be fined $150.00, required to seek counseling, and be placed on six months of supervised probation. Upon advice of counsel, the Petitioner chose to enter the plea, and accept the plea bargain agreement.
