The Issue The issue for consideration was whether Respondent's license as a real estate salesman in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact Respondent Diamond was licensed as a real estate salesman in Florida on November 4, 1957. On April 1, 1978, he renewed his salesman's license in a "non-active" status. Renewal has not been sought again by Respondent nor has any renewal of the license, in any fashion, been accomplished by Petitioner. Respondent has not been notified of the status of his license since March 31, 1980. On or about November 16, 1983, an indictment was filed in the United States District Court for the Southern District of Florida against Respondent and others alleging 48 counts of mail and wire fraud involving the sale of advisory contracts relating to oil and gas leasing operations under the Federal SIMOL program. On November 23, 1983, Respondent was arraigned before United States Magistrate Peter R. Palermo and entered a plea of Not Guilty to the charges laid against him. The indictment in question related to the Respondent in 18 of the 48 Counts. On February 8, 1985, as a result of a trial by jury, Respondent was found guilty of 7 of the 18 Counts laid against him specifically and not guilty of the remaining 11 Counts which related to him. Review of the pertinent Counts of which Respondent was found guilty reflects that these allegations, notwithstanding the terms of the Administrative Complaint filed herein, relate specifically and exclusively to mail fraud only. There is no evidence that Respondent was found guilty of wire fraud. From the date of the conviction up until January 31, 1986, Respondent failed to notify the Florida Real Estate Commission in any way of his conviction as stated above. Respondent admits all the allegations contained in the Administrative Complaint which relate to his guilt of and conviction for mail fraud in his letter requesting hearing in response to the Administrative Complaint. On April 9, 1985, Respondent was sentenced to 2 years imprisonment on each of the 7 counts of which he was found guilty each term to run concurrently, and was ordered to serve his sentence in the Eglin Federal Prison Camp at Eglin AFB, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that Respondent J. LEONARD DIAMOND's license as a real estate salesman in the State of Florida be revoked. RECOMMENDED this 7th day of March, 1986, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th of March, 1986. COPIES FURNISHED: Sue Hartman, Esquire Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Harold Huff, Exec. Director Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando; Florida 32801 J. Leonard Diamond #12936-004 P. O. Box 800 Eglin AFB, Florida 32542
Findings Of Fact Respondent, who was 54 years old at the time of the hearing, grew up in Blountstown, where he knew Ralph W. and Kate Foster, and their three children: Ralph, Jr., Alice and Mary. Kate Foster was his first grade teacher. Only Mary survives. Alice died in 1971, leaving two children. Ralph, Sr., died in 1973, less than two weeks before Kate died. Ralph, Jr., died in 1974, leaving Folly Hayes Foster a widow. In 1949, respondent moved to Mexico Beach, Florida, and in 1950, he went to work for Mexico Beach Corporation, selling and renting property. In that year he registered with petitioner as a real estate salesman. He is presently a registered real estate broker. Over the years, the Fosters acquired various parcels of Mexico Beach real estate and built cottages; Mary and Alice each ended up with a beach cottage, but for many years Ralph, Jr., had no cottage. Kate Foster wanted her son to have her cottage after her death. She consulted a lawyer in Blountstown who drew a deed in favor of Ralph, Jr., reserving in Kate a life estate. This deed mistakenly contained the legal description not of Lot 8, the improved lot Kate intended to convey, but of an adjoining, unimproved lot. Kate did not notice this when she executed the deed and everybody in the family was under the impression that Lot 8 had been conveyed. After her mother's death, Mary saw to it that the rental income from Let 8 was deposited first to her brother's account, then, after his death, to the account of Folly Hayes Foster. In 1975, Polly Hayes Foster told Mary that she wanted to sell Lot 8. As a result, Mary asked respondent to try to sell Lot 8. According to tax records respondent had copies of at the time, "Foster, R.W." had title to the property. Respondent had kept up with the Fosters and, like the family itself, was under the impression that Polly Hayes Foster had acquired Lot 8 upon her husband's death. Respondent showed Lot 8 to James C. and Mary B. Williams, who decided they wanted to buy it. Respondent prepared a warranty deed by filling in a form. Petitioner's exhibit No. 1. Among the items filled in was the legal description of Lot 8. In connection with their purchase of this property, the Williamses borrowed money from the Citizens Federal Savings & Loan Association of Port St. Joe, which, on the advice of counsel, accepted a mortgage on Lot 8 as security for repayment of the loan. In the course of trying to sell two lots the family thought belonged to Kate's estate, Mayo C. Johnston, the lawyer handling the estate, discovered that one of the Lots had been conveyed to Ralph Jr. Petitioner's exhibit No. 4. It soon came to light that this lot had been mistakenly conveyed instead of Lot 8. With the active cooperation of respondent, deeds of rectification were drawn and record title was made to conform to the intentions and understanding of everybody involved. Neither the Williamses nor any member of the Foster Family has suffered any financial harm as the result of these transactions.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the administrative complaint against respondent. DONE and ENTERED this 1st day of August, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Post Office Box 1900 Orlando, Florida 32802 Robert W. Moore, Esquire 203 Third Street Port St. Joe, Florida 32456
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. WILLIAM B. THOMAS, 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 27 day of September, 1982.
The Issue The issues to be determined are whether Respondents violated the provisions of Section 475.624, Florida Statutes (2007), and Florida Administrative Code Rule 61J1-7.001, as charged in the Administrative Complaints, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of real estate appraisers pursuant to Section 20.165 and Chapters 455 and 475, Part II, Florida Statutes (2009). Respondent, Fred Catchpole, is a licensed real estate appraiser, having been issued license number RD-7674. Respondent, William E. Woods, is a registered trainee appraiser, issued license RI-4855. At the times relevant to these complaints, Mr. Woods was supervised by Respondent Catchpole. On October 8, 2009, the Department issued Administrative Complaints against both Respondents. At the heart of both Administrative Complaints were allegations related to an appraisal report allegedly prepared by Catchpole and Woods. With the exception of the order in which Respondents are identified, the allegations in paragraphs four and six of the Administrative Complaints are identical. Quoting from the Administrative Complaint in Case No. 09-6822 (DBPR Case No. 2009016581), the Administrative Complaint alleges the following: On or about September 25, 2007, Fred Catchpole (Respondent) and William Woods developed and communicated an appraisal report (Report 1) for property commonly known as 2250 Braxton Street, The Villages, Florida 32162 (Subject Property), and estimated its value at $190,000.00. A copy of Report I is attached hereto and incorporated herein as Administrative Complaint Exhibit 1. * * * 6. Respondent made the following errors and omissions in Report 1: Incorrect effective on the cover of the report, the correct date is September 25, 2007; Incorrect effective date on in the Reconciliation section of the report; Incorrect effective date on the signature page of the Report; Incorrect Subject Property Inspection date on the signature page of the Report; Incorrect Comparable Sales inspection date on the signature page of the report; . . . . The Amended Administrative Complaint alleges the same facts, with the same dates. At hearing, it was established that there is no appraisal report developed or communicated that is dated September 25, 2007. The Report, attached to each Administrative Complaint and each Amended Administrative Complaint, is actually dated February 25, 2007. Once it was established that there was no appraisal report matching the dates alleged in the Administrative Complaint, the Department moved to dismiss the Amended Administrative Complaints in their entirety, with prejudice.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Appraiser's Board enter Final Orders with respect to each Respondent dismissing the Amended Administrative Complaints in their entirety. DONE AND ENTERED this 27th day of April, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 27th day of April, 2010. COPIES FURNISHED: Robert Minarcin, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757 Fred Catchpole 5449 Marcia Circle Jacksonville, Florida 32210 William Woods 2103 Herndon Street Dover, Florida 33527 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N801 Orlando, Florida 32801-1757
Findings Of Fact Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this case on January 11, 1978, in Cocoa, Florida. The following appearances were entered: Charles E. Felix, Orlando, Florida, for the Plaintiff, Florida Real Estate Commission; and Kenneth A. Studstill, Titusville, Florida, for the Defendants, Thomas L. Pittman and Pittman Real Estate, Inc. The Florida Real Estate Commission issued an Administrative Complaint against the Defendants on August 23, 1977. On September 12, 1977, the Defendants filed an election of rights form which constituted a petition for hearing. In accordance with the provisions of Section 120.57(1)(b)(3), the Commission requested that a hearing officer from the Division of Administrative Hearings be assigned to conduct the hearing. The final hearing was scheduled by notices dated October 19, 1977 and November 2, 1977. At the final hearing the Commission called Gary W. Brandt, a registered real estate salesman, as its only witness. The Defendants called Virginia Laver, a former employee of Defendant Pittman Real Estate, Inc., and the Defendant Thomas L. Pittman. Hearing Officer's Exhibits 1-3, and Petitioner's Exhibits 1 and 2 were offered into evidence and were received. There were conflicts in the testimony of certain of the witnesses. In resolving these conflicts due regard has been given to the credibility of the witnesses as evidenced in part by the demeanor of the witnesses at the hearing, and in part by the extent to which the witnesses' testimony has been corroborated by other evidence.
Recommendation The Hearing Officer having found factually that the Respondents did not violate the provisions of Chapter 475 Florida Statutes, as charged, recommends that no action be taken against the registration of any of the Respondents. DONE and ORDERED this 14th day of June, 1976. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Richard J. R. Parkinson, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Spencer Fox, Esquire Suite 107, 9065 Galloway Road Miami, Florida 33176
Findings Of Fact At all times pertinent hereto, Respondent, George R. Gurley, was a registered real estate broker-salesman in the State of Florida operating under License No. 0034797 issued by the Florida Real Estate Commission on April 1, 1979. Mr. Gurley arranged the sale of certain property on Highway 542 in Lakeland, Florida, owned by Lakeland Skyview, Inc., Durward Harrell and Charles J. Ziemba to Joseph D. De Silvestro. This sale was initially arranged in a contract executed on April 5, 1979, by Mr. De Silvestro, as buyer, and Charles J. Ziemba, individually, and Hobart H. Joost, President of Lakeland Skyview, Inc., for the seller. Sale price was to be $70,000 with a $1,000 deposit being held in escrow by R/D Parker Realty Company. A commission of 10 percent ($7,000) was called for in that portion of the contract providing for method of payment, but was not referenced in the brokerage fee portion of the contract at the bottom of the first page thereof. Respondent, Gurley, and two others were listed as witnesses. Thereafter, before this contract was closed, on May 4, 1979, Respondent arranged a resale of the property from Mr. De Silvestro to American Vault Bed Corporation with a purchase price of $90,000 of which, again, $1,000 was to be held in escrow by the R/D Parker Realty Company. This contract made no provision for any real estate commission. This second contract was witnessed as to both buyer and seller by Respondent. The property in question was originally listed with R/D Parker Realty Company on November 10, 1978, by Mr. Joost, President of Lakeland Skyview, Inc., on an exclusive right of sale contract form which was accepted by Mr. Gurley, the Respondent. Because Mr. Joost had worked with Respondent previously and was aware of his reputation, he listed the property with Respondent in preference to another real estate agent. According to Ms. Parker, who ran the real estate company, though the form indicates the listing was an exclusive, it was, in fact, not entered into the multiple listing service. Mr. De Silvestro, the individual who purchased the property in the first transaction, was himself a real estate broker-salesman who was at the time working as office manager for R/D Parker Realty Company. At the time of both transactions, it was the policy of Parker Realty that salesmen working for the company could make two transactions per year in their own names without paying any commission to Parker Realty so lone as Ms. Parker was made aware of it in advance. In the instant case, Parker Realty did not get a share of the commission, nor did Ms. Parker know about either sale at the time. She found out about them in June, 1982, after both Respondent and Mr. De Silvestro had left their association with her firm, in the summer of 1979. Both transactions were closed by mail by Stewart Title Company off Polk County during the period from late May to mid-June, 1979. The buyer's closing statement dated May 29, 1979, for the first sale to Mr. De Silvestro does not reflect a broker's commission. However, a check in the amount of $2,829.51, drawn by Stewart Title of Polk County, Inc., on its escrow account, made payable to Charles J. Ziemba and S. A. Rice, dated June 28, 1979, bears the notation "payment in full for note from George R. Gurley dated June 8, 1978, with interest in full." Both Mr. Gurley and Mr. Ziemba acknowledge that this check was a portion of the $3,500 Mr. Gurley received as commission on the sale to Mr. De Silvestro and which was paid to Mr. Ziemba in fulfillment of a prior existing debt to him. The following day, June 29, 1979, an additional check was drawn on the escrow account of Stewart Title of Polk County, Inc., payable to Randy Gurley in the amount of $670.49, which bears the notation, inter alia, "for balance of realtor's commission." Randy Curley is, in fact, Respondent. Mr. Gurley acknowledged that this figure, which, when added to the amount of the prior mentioned check totals $3,500, was his share of the real estate commission earned on the property in question to Mr. De Silvestro. The balance of the real estate commission of $7,000, in the amount of $3,500, was never paid either to Mr. Gurley or to Parker Realty. No evidence was presented to indicate where that $3,500 went, if, in fact, it was paid at all. Testimony in this area came from Karen Beck, an agent with Stewart Title, who was not, however, the closing agent for this transaction. Her testimony, based on what the actual closing agent told her, and therefore hearsay, leads her to conclude that the "parties," De Silvestro and Gurley, had indicated the commission was to be handled as it was. On June 12, 1979, Stewart Title received a check for $2,000 from R/D Parker Realty Company, which represented the $2,000 paid as deposits into Parker Realty Company's escrow account on the two sales in question. The check for $2,000 was signed by Ms. Parker's son, Richard, who was a partner in R/D Parker Realty and who had authority to execute the check in question. Mr. Parker was not present at the hearing, nor did he testify as to whether he had given Mr. Gurley authority to keep his half of the commission and not forward any of the commission to Parker Realty, the broker. Mr. Gurley at no time was an owner of the property in question, nor did he realize any profit from either sale. His sole compensation came from the commission he received from the sale of the property initially to Mr. De Silvestro. This does not fall within the permitted transactions referred to by Ms. Parker, whereby employees could make two purchases per year without paying commission. Respondent, Gurley, who has held a salesman's license since 1972 and been a broker since 1974, contends he has never, in all those years, done anything in the practice of the real estate profession which would warrant disciplinary action by the Real Estate Commission. He contends that both he and Mr. De Silvestro acted with the knowledge of the broker, R/D Parker Realty; they used office forms; used office witnesses; and the deposit monies placed on both contracts went into the office escrow account. Mr. Gurley contends that the entire transaction was open and aboveboard and that when he acted, he felt he was authorized to do this. Though he contends Ms. Parker's son, Richard, acknowledged that what Gurley was doing was appropriate, Ms. Parker indicates her son denied any knowledge of what Respondent and De Silvestro were doing. On balance, it is found that neither Gurley nor De Silvestro notified Parker Realty, in the form of Ms. Parker or Richard Parker, as to the details of the transaction. Respondent is a minister, has no criminal record, no bad debts and no difficulties with the law of any kind. He applied for a renewal of his license In April, 1982, but has had no notice of denial. The records of the State of Florida submitted pertaining to Respondent's licensure status, however, reflect his licensee as a broker was issued on January 21, 1983, and is effective until September 30, 1984. That would make his license current at the present time.
Recommendation In light of the foregoing, it is, therefore, RECOMMENDED: That Respondent be reprimanded. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 31st day of January, 1984. COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. George R. Gurley 800 East State Road 540A, #106 Lakeland, Florida 33803 Mr. Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
Findings Of Fact In November and December, 1974 John T. Halkowich was a registered real estate salesman with the brokerage office of Ayers F. Egan. Exhibit 2, Return Receipt for Registered Mail, was admitted into evidence to show that Halkowich acknowledged receipt of the Notice of Hearing. When Halkowich applied for registration as a real estate salesman, Egan was one of his sponsors. Upon his successful completion of the requirements for registration Egan agreed to hold Halkowich's license for him in Egan's office, but because business was slow he could not allow Halkowich any floor days. He agreed to allow him to sit on houses that neither Egan nor Egan's associate wanted to hold open. During the period of 1974, when little real estate was selling on the Florida Keys, the housing development project owned by Vogler and Snowman was running on hard tines and the developers were anxious to "get out from under" the property. John Vogler, Jr., the father of the Vogler partner in the project, went to Egan to seek help with the sales. Since Egan had no work for Halkowich he suggested that perhaps the developers could make a deal with Halkowich. The developers needed someone on the property at all times to act as watchman, show prospective buyers around, keep the grass trimmed, and supervise the completion of the project. Halkowich was provided an apartent on the site to live in, complete with utilities, in consideration for performing those services. For each unit of the project that was sold the developers agreed to pay Halkowich $2,000. One of the purchasers who appeared at the hearing had stopped by the development, was shown around by Halkowich, and thereafter made an offer directly to the developers to purchase a unit. A contract was subsequently executed between the developers and the buyer and referred to the developers' attorney who performed the closing. After the closing Halkowich was paid $2,000. When Egan learned that sales had been made and that Halkowich had received compensation from the developers he demanded his commission from Halkowich. When the latter advised Egan he couldn't pay him Egan told him he was in violation of the real estate license law and that he, Egan, would report him to the Florida Real Estate Commission if he didn't pay. Thereafter Egan piously reported Halkowich's transgressions to the Commission and this Administrative Complaint ultimately followed.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent received his real estate sales license through fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, by allegedly misrepresenting his criminal record on his application for licensure.
Findings Of Fact The Respondent is a licensed real estate salesperson, holding license number 0638567. The Petitioner is an agency of the State of Florida charged, as pertinent hereto, with regulation of the entry into licensure and with the practice standards pertaining to real estate salespersons and brokers in the state of Florida. The Respondent applied for licensure as a real estate salesperson on April 8, 1996. He was approved to take the examination for licensure. He passed his examination and was duly licensed, and at all material times has been the holder of the above-referenced license. In response to question nine on the licensure application, he was asked whether he had ever been convicted of a crime, found guilty, or had entered a plea of guilty or nolo contendre. He responded to question nine with the answer "yes" and attached a handwritten notation regarding a 1972 arrest, plea and one-year probationary sentence. The Respondent did not give any information on that application concerning an arrest occurring on April 12, 1986, in Gwinnett County, Georgia, and his subsequent conviction on January 6, 1987. That conviction was a result of a negotiated guilty plea and resulted in 12 month probation. During the period of time encompassed by the April 1986 arrest, the Respondent's life had gone awry. He was dependent on drugs and alcohol and at the time of the April 12, 1986, arrest, on a shoplifting charge, he was habitually under the influence of drugs or alcohol. There are many aspects of this period of time in his life which are blocked out of his memory and which he simply had no recollection of. When he executed the licensure application, he simply failed to remember the arrest and conviction. When it was brought to his attention by investigator, Benjamin Clayton, of the Division of Real Estate, he readily admitted it and indicated that he had simply not recalled it when executing his licensure application. The evidence of record indicates that the Respondent was involved in a very serious motor vehicle accident on December 19, 1995. This resulted in numerous, serious injuries to the Respondent, including severe head injuries. He was treated by a number of doctors for the injuries resulting from this accident including Dr. William Smith and Dr. Robert Flurry. Dr. Flurry indicated that for approximately 4 to 5 months after his accident, the Respondent had symptoms of "Post-Concussion Syndrome." He was having great difficulty with dizziness, difficulty in concentrating, some confusion and memory loss. These problems eventually resolved themselves. In an office note of Dr. William Smith, an Orthopedic Surgeon, dated January 8, 1996, Dr. William Smith documents that the Respondent had some problems with memory loss. Mr. Stuart Bainter and Mr. Bill Haven, are well acquainted with the Respondent, knew him before his automobile accident and have continued their acquaintance with him thereafter. They established that for a number of months following his injuries due to the accident, he had substantial difficulty remembering things and that the problem persisted through and beyond the date the application for the real estate sales license was completed. In more recent times the memory loss and related problems of confusion and difficulty in concentrating have gradually resolved themselves. Ms. DeLany Sheffield, the Respondent's wife, testified about the extensive emotional problems the Respondent had around the time of his arrest in Gwinnett County, Georgia, on the shoplifting charge. She described in detail his rehabilitation efforts since then which have resulted in his being drug-free since the date of his arrest through the present time. She also described the incident surrounding the auto accident on December 19, 1995, and the resulting memory lapses, forgetfulness and inability to concentrate suffered by the Respondent for a substantial period of time thereafter. The Respondent described the events concerning the 1972 arrest which he did report on his initial real estate sales licensure application, and described the events surrounding his arrest in April 1986, which resulted in the negotiated plea of guilty in January, 1987. The second arrest was the one not referenced on his application. The Respondent is frank to admit that he does not know whether his failure to recall the April 1986 arrest and conviction was due to his addiction to drugs and alcohol at the time of these events, or whether it is due to memory loss resulting from the injuries due to his accident. He described "blocking out" entire periods of time from memory during the period he was suffering from drug and alcohol addiction, and described as well the lapses in memory occurring for a number of months after his automobile accident. Since his licensure he has been an exemplary real estate salesperson and has earned numerous honors, awards, and accomplishments. He testified that he has refused to engage in certain real estate transactions when he determined that the proposed buyers or investors were in some manner trying to circumvent law, rules or regulations. He has endeavored to conduct his real estate sales-related business in a manner consistent with all relevant, legal, regulatory, and moral standards. On March 9, 1998, the Respondent applied for licensure as a real estate broker disclosing both arrests. In due course he was approved, based upon that application to take the examination for licensure as a real estate broker. He passed that examination and has been duly licensed and at all material times since, has held Florida Real Estate Brokers License #0638567. Both the application and issuance of that broker's license occurred after the subject investigation had begun by the Division of Real Estate. When the Respondent executed his original application for licensure as a real estate salesperson on April 8, 1996, he had no intent to conceal or otherwise make a dishonest representation on that application for licensure concerning question nine. He inadvertently failed to mention the 1986 arrest and events surrounding it due to his failure to recall it. The failure to describe that arrest and surrounding circumstances was due to memory loss attributable to one or both of the above-found reasons. His failure to describe the 1986 arrest, conviction and probationary status was not due to any intent to defraud, conceal or misrepresent facts on his licensure application.
Recommendation In consideration of the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and argument of the parties, it is RECOMMENDED that a Final Order be entered by the Division of Real Estate, finding that William C. Sheffield is not guilty of obtaining his licensure as a real estate salesperson by fraud, misrepresentation, or concealment. Accordingly the Administrative Complaint should be dismissed in its entirety. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 4th day of January, 1999. COPIES FURNISHED: Geoffrey Kirk, Esquire Department of Business and Professional Regulation 400 West Robinson Street Ocala, Florida 32801-1900 John F. Windham, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 James Kimbler, Acting Division Director Divison of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
