The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint, as amended, filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been the holder of a Class "B" security agency license, number B 0001057. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of grand theft, a third-degree felony, in violation of Section 812.014(1)(a), Florida Statutes. On July 27, 1995, Respondent was tried, was found guilty, and was adjudicated guilty of perjury not in an official proceeding, a first-degree misdemeanor, in violation of Section 837.012, Florida Statutes. In the foregoing proceeding, the Circuit Court of the 17th Judicial Circuit in and for Broward County, Florida, placed Respondent on probation for terms of five years and one year to run concurrently, and ordered Respondent to pay restitution in the amount of $15,783.67 to the victim.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Amended Administrative Complaint, as amended, and revoking Respondent's Class "B" security agency license number B 0001057. DONE and ENTERED this 21st day of February, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, 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 21st day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 95-5217 Petitioner's proposed findings of fact numbered 1-4 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: Michele Guy, Esquire Department of State Division of Licensing The Capitol MS-4 Tallahassee, Florida 32399-0250 Mr. Daniel D. Goldberg 2812 Southwest 65th Avenue Miramar, Florida 33023 Honorable Sandra B. Mortham Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250
The Issue The issue is whether Respondent should deny an application for a real estate sales associate license on the alleged grounds that, in violation of Subsections 475.17(1)(a), 475.181, and 475.25(1)(f), Florida Statutes (2008),1 the application discloses two felony convictions for crimes of moral turpitude, the initial application omitted a misdemeanor conviction for driving under the influence (DUI), and the applicant’s explanation in mitigation of the incidents is allegedly unpersuasive.
Findings Of Fact Respondent is the state agency responsible, in relevant part, for licensing real estate sales associates in the State of Florida, pursuant to Chapter 475. Petitioner applied for a real estate sales associate license on March 8, 2007, and Respondent proposes in this de novo proceeding to deny the application. Respondent states several grounds for the proposed denial of Petitioner’s application. First, the application discloses two felony convictions for crimes of moral turpitude, and the crimes would have been grounds for revoking or suspending a real estate license. Second, Petitioner omitted a DUI misdemeanor conviction from the initial application before the application was complete. Third, Respondent claims the applicant has not demonstrated honesty, truthfulness, trustworthiness, good character, and a good reputation for fair dealing. Finally, Respondent considers the applicant’s testimony in explanation or mitigation of the crime and omission in his initial application to be unpersuasive. The application discloses two felony convictions on November 23, 1993. When Petitioner was approximately 18 years old, Petitioner and three other teenagers committed aggravated battery with a deadly weapon and armed robbery against two male adults in Lee County, Florida. One of the teenagers struck each victim with a baseball bat; took articles of clothing, jewelry, wallets, and fishing rods and reels from each victim; and divided the articles among the perpetrators. Each teenager was under the influence of alcohol and controlled substances, including marijuana and other drugs. The victims required hospital treatment. The two felony convictions involve crimes of moral turpitude. The crimes exhibit inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. The two felony convictions are grounds for revoking or suspending a real estate license. On March 29, 1995, Petitioner pled nolo contendere to two counts of robbery with a deadly weapon and two counts of aggravated battery. The court adjudicated Petitioner guilty, sentenced Petitioner to 10 years’ imprisonment, to be followed by two years of probation, and ordered Petitioner to pay $1,500.00 in restitution to the victims. When the court convicted Petitioner on March 29, 1995, Petitioner was not qualified for a real estate sales associate license within the meaning of Subsection 475.17(1)(a). The statute deems that Petitioner is not qualified for a real estate sales associate license today, unless by lapse of time and subsequent good conduct and reputation or other sufficient reason, it appears the interest of the public and investors will not likely be endangered by licensing Petitioner. For reasons stated hereinafter, a preponderance of evidence shows the crimes in 1993 do not make it likely that licensing Petitioner as a real estate sales associate will endanger the public. The testimony of Petitioner in explanation and mitigation of the crimes committed in 1993 is persuasive. Petitioner did not inflict physical harm on either of the victims. Petitioner’s participation was limited to driving the vehicle, which was his mother’s car, used in the commission of the crimes and accepting a portion of the stolen property. Petitioner was intimidated by the teenager who used the baseball bat on the victims, and that teenager was under the influence of alcohol and controlled substances. When arrested, Petitioner admitted his guilt to police and cooperated fully in the investigation. When sentenced, Petitioner faced the victims in open court, admitted his guilt, accepted responsibility, and apologized to the victims and their family members. Sufficient time has lapsed for Petitioner to be rehabilitated and to overcome the statutory presumption of unfitness. Approximately 15 and 14 years have passed, respectively, from the dates of the commission and conviction of the crimes. Almost six years have passed from the successful completion of probation on June 5, 2003. Petitioner’s subsequent good conduct after 1993 demonstrates his rehabilitation. Petitioner paid the $1,500.00 in restitution ordered by the court. Petitioner was released from prison in late 1999, after serving four years and eight months of his 10-year sentence. While in prison, Petitioner took classes in drafting, anger management, and life skills. Petitioner also attended alcoholics anonymous and narcotics anonymous. Petitioner taught other inmates and read extensively. Petitioner also assisted with the development of a volley ball team for prisoners. Upon release from prison in late 1999, Petitioner moved to North Carolina for approximately two years, primarily to avoid contact with his former peer group. Petitioner worked two jobs and attended college where he continued to study drafting. In North Carolina, Petitioner was injured in an automobile accident and suffered severe head injuries. Petitioner was in a coma for nine days. After recovering from his injuries, Petitioner returned to his family in Lee County, Florida. Petitioner has been gainfully employed, self-supportive, and has been working for the past couple of years in a real estate office as an unlicensed assistant. Petitioner has earned a reputation for honesty, truthfulness, trustworthiness, and good character and has earned a good reputation for fair dealing in a relationship of trust and confidence with safety to investors. Petitioner’s girlfriend and grandmother are each licensed by Respondent as real estate brokers. Both licensees recommend Petitioner for licensure. Two disinterested licensees also recommend Petitioner for licensure.2 On February 14, 2007, Petitioner was convicted of a DUI misdemeanor. Petitioner paid the court-ordered fine and satisfactorily completed his sentence of community service and probation. A preponderance of evidence does not show that the misdemeanor conviction for DUI is a crime of moral turpitude or one that directly relates to the duties of a real estate sales associate. Respondent did not cite any legal authority to show that the DUI conviction would be a ground for license revocation or suspension, if Petitioner were licensed. Finally, the DUI conviction does not evidence a lack of honesty, truthfulness, trustworthiness, good character, or fair dealing. The initial application from Petitioner omitted the DUI conviction. Petitioner corrected the omission before the application became final and before Respondent formulated any proposed agency action. Respondent notified Petitioner by letter dated August 5, 2008, of the omission. The letter notified Petitioner that the application was incomplete without documentation of the DUI conviction and requested the documentation needed to complete the application. Petitioner promptly complied and provided the requested documentation on August 22, 2008. If the initial application had disclosed the DUI conviction, Respondent cited no legal authority that would make the DUI conviction a ground for denying the application. Petitioner did not omit the DUI conviction from the initial application through a lack of candor. The testimony of Petitioner was credible and persuasive.3 The omission of the DUI conviction from the initial application evidences a lack of diligence. Any incompetence or lack of diligence that remains after August 22, 2008, when Petitioner completed the license application, can be corrected through a probationary license authorized in Florida Administrative Code Rule 61J2-24.001(2).
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting a probationary salesperson license to Petitioner consistent with the terms of this Recommended Order. DONE AND ENTERED this 24th day of April, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2009.
The Issue The issues are whether Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761. On or about May 8, 1994, Respondent was in the front yard of his residence. Police officers pulled into Respondent's driveway and requested that Respondent approach the patrol car. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket. The item that Respondent dropped was a bag containing white powder. The white powder was cocaine. Respondent was aware of the presence of the bag on his person. Respondent's possession of the bag containing cocaine was unlawful. One of the police officers advised Respondent that he was under arrest. The police officer instructed Respondent to put his hands behind him. Respondent refused to put his hands behind him. The police officers physically restrained Respondent. Respondent subsequently entered a plea of nolo contendere to the offenses of attempted possession of cocaine and resisting officer without violence. On July 17, 1995, Respondent was adjudicated guilty of these two offenses by the county court judge, in and for Putnam County, Florida, in Case Number 95-2767MM06. The court suspended any fine or cost which might be imposed for the conviction of resisting officer without violence. The court ordered Respondent to pay a fine of $241.50, prosecution costs of $50, and an investigation cost of $50 for the conviction of attempted possession of cocaine.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Johnnie Holcy, Jr. Route 6, Box 300 Palatka, Florida 32177 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
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 denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
