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
Findings Of Fact At all times material to the charges, respondent was a licensed real estate salesman, on inactive status, holding license no. 0330793., and residing in Lake Worth, Florida. In early October, 1983, Jack Barlage entered the offices of Colony Real Estate in Lake Worth, Florida. He was a builder and looking for acreage to purchase. Joyce Adams, a real estate salesman with Colony Real Estate, met with him and, two or three days later, showed him a 5.207 acre tract of land in sunny Urban Meadows, an unrecorded subdivision located west of Loxahatchee, Florida. He expressed an interest in the property; she told him that the owner, Richard Moore, might be willing to sell it. A day or two later, Mr. Barlage called Ms. Adams and asked if she would call owner Moore and obtain a purchase price. She responded that she would not get a commission from selling the property and that he should deal with "Leon," who would be able to contact Mr. Moore, the owner. A day or two later, Ms. Adams introduced Mr. Barlage to "Leon," who was Leon Dennis, respondent's husband--the original developer of Sunny Urban Meadows. This meeting took place at a nearby coffee shop in Royal Palm Beach, called Sandy's. John Adams, Ms. Adams' husband and a real estate salesman, was also present. Respondent did not attend this meeting and there is no evidence that she was, at this point in time, involved in the transaction. This coffee shop meeting was Ms. Adams' last contact with Mr. Barlage, and she had no further involvement in this real estate transaction. A contract for "purchase and sale" of the Sunny Urban Meadows tract was prepared at this meeting and signed by Mr. Barlage, the prospective purchaser. Leon Dennis, respondent's husband, retrieved the form "purchase and sale" contract from his car, returned to the coffee shop, and completed it in the presence of the others. He filled in the terms, including a $28,000 purchase price. He arrived at this figure based on her knowledge of current land values in the area. The form "Brokerage Fee" provision on the bottom of the contract, however, was not filled in; no sales commission was indicated and no broker identified. Mr. Dennis told purchaser Barlage that he would have the contract presented to owner Moore. At that time, Mr. Barlage had not yet had any contacts with respondent, Mr. Dennis's wife. Mr. Dennis, with the help of a relative who was a close friend of Mr. Moore's, then had the contract delivered to Mr. Moore, in Punta Gorda, Florida. Approximately a week earlier, respondent had telephoned Mr. Moore, asking if he wanted to sell the subject property. At that time, a sales commission was not discussed; neither did she represent that she was a licensed real estate salesman or broker. But when the original contract was subsequently delivered to him by Mr. Moore's relative, the "Brokerage Fee" provision had been completed, providing for payment of ten percent of the gross price or $2,800 to Pat Dennis, the respondent. Her name was hand printed above the line labeled, "Name of Broker." Upon receiving the contract and discovering the sales commission, Mr. Moore telephoned respondent and told her that he would not pay a ten percent commission--he said he would agree only to a six percent commission, to be split between her and his own real estate brokerage firm. He also told her that if those terms were not acceptable to her, he "would go ahead and do it without her and give-her her money after the deal was done." (TR-21) Mr. Moore then arranged to meet directly with Mr. Barlage, the prospective purchaser. On October 9, 1983, Mr. Barlage drove to Punta Gorda and met Mr. Moore in a hospital parking lot to finalize the contract. Mr. Moore, noting the "Brokerage Fee" provision, said "Who are these people?" and "Well, I'll take care of them," or words to that effect, (TR-10). He then drew a line crossing out the "Brokerage Fee" provision and initialed it. He then told Mr. Barlage he wanted to do a credit check; one or two days later, he called Mr. Barlage and told him he was going to accept the contract. It was at that time, on or about October 9, 1983, that Mr. Moore executed the contract as seller. For reasons not material, the contract of sale was never carried out by the parties. Mr. Barlage unilaterally cancelled the contract. When Mr. Moore called him to inquire about the $500 earnest money deposit, which the contract had indicated was held by "Stewart Title," Mr. Moore learned that a deposit had not been received by Stewart Title; in fact, Mr. Barlage had made no deposit at all. There is conflicting testimony as to whether respondent ever communicated with Mr. Moore concerning this real estate transaction. Respondent denies any direct involvement. Her denial is rejected and the testimony of Mr. Moore, who had no discernible bias or motive to falsify, is accepted as persuasive.
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent's license as a Florida real estate salesman be revoked for violating Section 475.25(1)(a) and (b) and 475.42(1)(b), Florida Statutes, in the manner described above. DONE and ORDERED this 25th day of February, 1985, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1985. COPIES FURNISHED: Fred Langford, Esquire Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Richard McClain, Esquire 6167 Haddon Road West Palm Beach, Florida 33409
Findings Of Fact By application originally executed on March 6, 1987, petitioner, Paul Elden, sought licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). The application reflects it was received by the Division on July 27, 1987. Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Petitioner answered in the affirmative and gave the following response: March 1986 for bookmaking was given two years probation. Upon further investigation by the Division, it learned that on March 17, 1986 in the Broward County Circuit Court, Elden was adjudicated guilty of two counts of bookmaking. In addition, adjudication of guilt was withheld for a third count of possession of gambling paraphernalia. All counts were felony charges. For these charges, Elden was placed on two years' probation. The probation was successfully completed in March, 1988. Based upon this information, but without citing relevant statutory grounds, the Division denied the application by letter dated January 21, 1988. Elden freely acknowledged his mishap with the law. It occurred in December, 1985 when a Hallandale undercover police officer entered his book store in Hallandale and asked Elden to place two bets on football games. Elden took the bets and placed them with a bookie who frequented the store for the purpose of taking bets from Elden and other customers. Elden was later charged with two felony counts of bookmaking and, after a notebook with names of betting customers was found on the premises, he was also charged with possession of gambling paraphernalia. Elden no longer owns the book store in which the gambling occurred. At the time of hearing, Elden was a sales representative for a local health maintenance organization. If his application is granted, he intends to place his license with a North Miami Beach broker who has offered him a position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Paul Elden for licensure as a real estate salesman by examination be DENIED. DONE AND ORDERED this 23rd day of May, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 23rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0350 Respondent: Covered in findings of fact 1 and 2. Covered in finding of fact 3. Covered in finding of fact 4. Rejected as unnecessary. COPIES FURNISHED: Mr. Paul Elden 2049 South Ocean Drive Hallandale, Florida 33009 Manuel E. Oliver, Esquire 400 West Robinson Street Room 212 Orlando, Florida 32801 Darlene F. Keller Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner, Keith T. Loggins, on August 13, 1982, under oath, signed an application for licensure as a real estate salesman of the Florida Real Estate Commission. This application was filed with the Florida Real Estate Commission on September 1, 1982. Question 6 on that form states: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? to which he answered, "No." This answer was false. Petitioner was arrested by the Orange County Sheriff's Office on November 14, 1972, on a charge of grand larceny in connection with a burglary and breaking and entering. Pursuant to a plea of guilty, he was placed on probation for five years. On May 23, 1974, Petitioner was arrested by the Osceola County Sheriff's Office on a charge of embezzlement, but was not tried, and the case was dropped. Petitioner denies any knowledge of possible grounds for this arrest. In May, 1975, Petitioner was convicted of a probation violation, and his probation was modified to include four months' confinement in county jail, and five months later, he was arrested for grand theft by fraud on insufficient fund check, convicted of grand larceny, and sentenced to serve five years in Florida State Prison. Thereafter, on August 6, 1975, Petitioner was convicted upon his pleas of guilty in Circuit Court for Orange County, Florida, on two separate cases involving obtaining property by worthless check written in March, 1975, one a felony count and one a misdemeanor count. He was sentenced to four years' imprisonment on the felony and one year on the misdemeanor, the terms to run concurrently. On September 29, 1975, he was placed on probation for seven years to start upon his release from prison, which took place on August 1, 1978. His probation, which should have run to the end of July, 1985, was, however, terminated, and Petitioner was discharged on October 20, 1982, almost three years early because of the recommendations of his probation officer, Connie Reed, with the approval of her supervisor, Mr. Charles L. Steen. Since his release from prison in August, 1978, Petitioner has held numerous jobs ranging from that of a laborer to that of assistant manager of a motel. In each instance, he left the position of his own volition to improve his income or working hours. He has never been fired nor have there ever been any complaints about his work. He has held positions of trust and of responsibility and in several cases has had the requirement to handle, unsupervised, substantial sums of money. No shortages were discovered. In his last two positions, Petitioner has been a salesperson of time- sharing resort condominiums, as a salaried employee of the developer. He is very cautious in his approach and delivery to prospects because of the close scrutiny given this type of operation. Both his current and a prior supervisor indicate he has performed his duties satisfactorily, and they have not received any complaints about the Petitioner. Petitioner was quite frank about his past when interviewing for the positions and in no sense tried to hide his criminal record. In both jobs, Petitioner has handled funds of the company, and there has not been any indication of trouble or shortage. Petitioner wants the license to sell real estate because it would open the door for him to a much greater earning potential. In his current job, for example, he has earned $600 in the month he has been there. Had he had a salesman's license and been on a commission basis, his earnings would have been much higher. Additionally, receiving the license would give him a certain amount of status and an ego boost, especially after the way he started his adult life. Both Ms. Reed and Mr. Steen, his former probation officials, feel Petitioner has been fully rehabilitated entirely through his own motivation and effort. His early offenses were when he was a young man and influenced by the use of drugs which he no longer uses. Since his release from probation he has had only two traffic citations, one for failing to stop at a stop sign, and one for failing to yield the right-of-way, resulting in an accident. When Petitioner's application for a license was first denied, he requested an informal hearing before the Commission, at which time he told the members he knew when he filled out the application form if he answered accurately, there was no way he would get his license. He now admits that answering falsely was the wrong thing to do. He understood the question, and his answer was what he intended to say and not an error. He answered falsely because the most recent arrest was seven years old, and his current life-style is completely different than his life-style then. His prior arrests and convictions in a moral sense, he feels, have no bearing on his present life, and he felt he had paid his debts to society. He now realizes that his answer to Question 6 should have been accurate and to falsify was a mistake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner be denied licensure as a real estate salesman. RECOMMENDED this 19th day of April, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1983. COPIES FURNISHED: Richard H. Hyatt, Esquire 918 North Main Street Kissimmee, Florida 32741 Lawrence S. Gendzier, Esquire Assistant Attorney General Department of Legal Affairs 400 West Robinson Street Room 212 Orlando, Florida 32801 William M. Furlow, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Mr. Harold Huff Executive Director Florida Real Estate Commission 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
The Issue The issue is whether the Petitioner, Walter L. Jordan, (Jordan) is entitled to licensure as a real estate salesman in the State of Florida. Petitioner presented his own testimony. Respondent, Department of Professional Regulation, Florida Real Estate Commission, (Commission) had two exhibits admitted in evidence. The transcript of the proceedings was filed on November 18, 1987. At hearing the parties agreed to file proposed orders within ten days of the filing of the transcript The Commission's proposed order was filed on December 2, 1987, and is therefore untimely. Jordan has failed to file a proposed order. Accordingly, while the Commission has filed a proposed order, it has not been considered and no rulings will be made on the Commission's proposed findings of fact.
Findings Of Fact Jordan filed an application for a real estate salesman's license on or about February 14, 1987. In that application, Jordan acknowledged an arrest and conviction for possession of marijuana on February 12, 1976; an arrest and conviction for possession of a firearm in October, 1983; an arrest for aggravated assault in October, 1983, which was allegedly withdrawn by the prosecuting authority; and an arrest and conviction for breach of peace and disorderly intoxication in April, 1984. Based upon these convictions, the Commission denied Jordan's application by letter dated August 27, 1987. Jordan acknowledges these arrests and convictions, but does not believe he should be disqualified from licensure based on "two misdemeanors and one adjudication withheld." Further Jordan testified that it [the convictions] "doesn't prove I'm the best character in the world, but that's no real mar on my character, I wouldn't assume." Jordan presented no evidence of rehabilitation except that he worked for a company named Hubbard from June, 1986, to December, 1986; he was self- employed or unemployed from December, 1986, to April, 1987; he has worked for his father doing construction work since April, 1987; and he is the father of four children that he is taking care of alone.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order denying Walter L. Jordan's application for licensure as a real estate salesman. DONE AND ENTERED this 8th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 8th day of December, 1987. COPIES FURNISHED: Mr. Walter L. Jordan 3225 Rosselle Street Jacksonville, Florida 32205 Lawrence S. Gendzier Department of Professional Regulation Fla. Real Estate Comm. 400 West Robinson, Room 212 Orlando, Florida 32801 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Huff, Executive Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32801
The Issue Whether Dorothy M. Azar answered Question 6 on her application incorrectly with the intent to obtain her license by fraud, misrepresentation or concealment.
Findings Of Fact Dorothy M. Azar is a registered real estate saleswoman holding License No. 0164341 issued by the Florida Real Estate Commission. Azar applied for licensure initially on June 7, 1976. See Exhibit 1, pages 1 and 2. Azar subsequently reapplied on August 24, 1976. This application was stamped received by the Florida Real Estate Commission on August 27, 1976. Azar was arrested on June 9, 1976 pursuant to the Information filed by Robert Eagan, State Attorney, Ninth Judicial Circuit, State of Florida, which charged Azar with a violation of Florida Statute 812.021 and alleged that she took, sold or carried away property; to wit: clothing, the property of Robert Kleinmann as custodian and of a value of more than One Hundred Dollars ($100.00) with the intent to permanently deprive Kleinmann of the clothing. This criminal information was received as Exhibit 2. When Azar completed her second application on August 25, 1976, no action had been taken on the criminal charges pending against her. On or about this date, according to her testimony, she went from Lehigh Acres, Florida, to the Florida Real Estate Commission Offices in Winter Park, Florida, to review the examination which she had taken and failed in July. While there, she filled out her second application, pages 3 and 4 of Exhibit 1. According to her testimony, Azar was very rushed because her review appointment was for only one hour and she had arrived late. She stated that prior to her review she was given an application to fill out and that she did not even read the questions but copied her answers from her first application. She further testified that she had at first copied her old address in Orlando on the second application, correcting it to her new address in Lehigh Acres in the margin of the application. See page 3, Exhibit 1. On September 8, 1976, the Florida Real Estate Commission made a check of any arrests of Azar as indicated by the annotation on the second application under Question 6. On November 30, 1976, Azar entered a plea of no contest to the charge of attempted grand larceny and adjudication was withheld. See the Court Minutes, Exhibit 3, and the testimony of Azar. On November 15, 1976, the Florida Real Estate Commission issued Azar her license as a registered real estate saleswoman. The answers to Questions 4 and 5 on the second application filed by Azar differ slightly from the answers given to those questions on her first application. Although Azar testified that she did not read the questions on the second application but recopied her answers from her first application, the fact that the entries on the second application to Questions 4 and 5 differ from those on the first application indicates that Azar at least read the two questions preceding Question 6. This fact and the content of Question 6 lead to the conclusion that Azar did read Question 6. Further, an arrest on a charge of Grand Larceny within the preceding ninety days would be sufficiently memorable for Azar to recall when prompted by reading Question 6. Having determined, that Azar did in fact read Question 6 and would have remembered her arrest, one must conclude that Azar knowingly did not correctly answer Question 6 and therefore intended to conceal her arrest.
Recommendation The Hearing Officer, based upon the foregoing Findings of Fact and Conclusions of Law, recommends that the Florida Real Estate Commission revoke the registration of Dorothy N. Azar as a registered real estate salesman with leave for Azar to immediately refile her application. DONE and ORDERED this 12th day of August, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 E. G. Couse, Esquire 2069 First Street, Suite 202 Post Office Drawer 1686 Fort Myers, Florida 33902
Findings Of Fact The parties stipulated that except for the reasons set forth in the Department's letter of March 17, 1983, the Petitioner, Suzanne McDermott, is otherwise qualified for licensure. On May 14, 1977, in the Circuit Court of Hillsborough County, the Petitioner pled guilty to the offense of unlawfully and feloniously delivering a certain controlled substance, to wit: cocaine. Said court withheld adjudication and imposition of sentence and placed the Petitioner on probation for seven years. After she was placed on probation, Petitioner ceased using controlled substances. By order of the court, she was evaluated by a drug treatment program, found to be not addicted to controlled substances, and has not since used controlled substances. Petitioner's probation was terminated after two years by the recommendation of her probation officer, and she has been off probation for approximately three years. The Petitioner completed an application for licensure as a general lines agent and submitted it to the Department of Insurance and Treasurer. She answered in the negative Question 13 of said application, which reads as follows: Have you ever been charged with or convicted of a felony? The Petitioner stated that she interpreted this question to ask whether she had been convicted of a felony (TR-11.) The Petitioner has not been convicted of a felony. Petitioner's testimony was credible. When asked to clarify or amplify her status, the Petitioner employed an attorney to obtain her court records and provided them to the Department. These records were the ones introduced by the Department at the hearing. The Petitioner has been employed for five and a half years with Poe and Associates, Inc. Tom McMullen, a vice president with Poe and Associates and the Petitioner's immediate supervisor, testified that she is a highly competent and knowledgeable employee. She has completed the educational requirements to be an underwriter. McMullen observes Petitioner's work every business day, and she is responsible for handling money on a routine basis. Her accounts are always in order, and she has never had any problem with her accounts. At the time the Petitioner engaged in the activities for which she was placed on probation, she was head teller at Southeast Bank of Tampa. These activities did not in any way involve her position with the bank.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Suzanne McDermott, for licensure as a general lines agent be approved. DONE and RECOMMENDED this 8th day of September, 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 8th day of September, 1983. COPIES FURNISHED: Ms. Suzanne McDermott 4208 Watrous Avenue Tampa, Florida 33609 Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 The Honorable Bill Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
The Issue The issue is whether Charlie Phillips is entitled to licensure as a real estate salesman.
Findings Of Fact Charlie D. Phillips applied for licensure as a real estate salesman on or about May 22, 1987. That application was denied by the Florida Real Estate Commission on August 19, 1987, based upon Mr. Phillips' answer to question 6, which asked whether he had been convicted of a crime. Mr. Phillips had answered yes. He had attached to the application a letter indicating that he had been convicted of the felony of indecent exposure before a minor in Colorado in April 1983, when Mr. Phillips was 21 years old. The incident involved had occurred approximately two years before his conviction. After the incident and before his conviction Mr. Phillips had engaged in counselling with a Colorado psychiatrist, Dr. Brent Steel for close to a year before the matter went to court. At the criminal hearing Mr. Phillips pled guilty, was placed on probation, and was not incarcerated for any period of time, apparently in part due to his successful participation in therapy with Dr. Steel. The Colorado court terminated the probation almost a year early. Mr. Phillips remained in counseling with Dr. Steel in Colorado for five years. Since coming to Key West, Florida, Mr. Phillips has been counselled by Dr. Tanju T. Mishara, a clinical psychologist licensed in Florida. At first, Mr. Phillips had been counselled by a psychologist working under Mishara's supervision at the mental health care center in the Lower Keys, but after the psychologist's training was completed, Dr. Mishara continued seeing Mr. Phillips. The Hearing Officer is persuaded by Dr. Mishara's testimony that Mr. Phillips has overcome the delinquent behavior which Mr. Phillips engaged in when he was young. Neither the behavior nor the urges that caused the behavior have occurred for a number of years now. Mr. Phillips has continued in therapy in Colorado and Florida beyond the period that he was required to as a result of the criminal proceeding, which Dr. Mishara regards as an important indication that Mr. Phillips resolved to take responsibility for his actions and to overcome the behavior which got him into trouble. Most people stop counseling as soon as the troublesome behavior stops without ever resolving the problem that led to the inappropriate behavior. Dr. Mishara has determined that it is no longer necessary for Mr. Phillips to remain in therapy. Mr. Phillips now is well adjusted socially, has been involved in post- secondary education, has a responsible job, has earned the respect and trust of coworkers, has a serious relationship with a young woman of his age, and is unlikely to engage in further antisocial behavior which would jeopardize his standing in the community or the integrity of a profession in which he was involved. The Hearing Officer is satisfied that Mr. Phillips is now a competent and responsible citizen who has overcome his problem. The Hearing Officer was especially impressed with the forthright manner in which Mr. Phillips disclosed his past difficulties, accepted responsibility for his actions, and detailed the efforts that he has made to overcome those past problems. In view of the both the very favorable impression which Mr. Phillips made at the hearing, and the testimony of Dr. Mishara in which she indicated she would have no reservation in recommending the approval of his application as a salesman, which is a position of trust, the Hearing Officer is persuaded of Mr. Phillips' rehabilitation.
Recommendation Based upon the foregoing it is RECOMMENDED that the Florida Real Commission enter a final order granting Charlie D. Phillips' application for licensure as a real estate salesman. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of May, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1988. APPENDIX Rulings on the Real Estate Commission's proposed findings of fact. Adopted in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered generally in findings of fact 4, 5, and 6. Rejected because Dr. Mishara was familiar with Mr. Phillips' case because of her supervision of the psychologist who first worked with him, Dirk Lorensen (transcript page 16) and she began seeing him in the fall of 1986. She is also familiar with his records from his therapy in Colorado. (Transcript page 17) Rejected as an insufficient characterization of Dr. Mishara's testimony. Rejected because the issue here is rehabilitation, not whether there may have been other occasions of exposure prior to the one to which Mr. Phillips pled guilty. COPIES FURNISHED: CHARLIE D. PHILLIPS POST OFFICE BOX 607 KEY WEST, FLORIDA 33041 LAWRENCE S. GENDZIER, ESQUIRE ASSISTANT ATTORNEY GENERAL DEPARTMENT OF PROFESSIONAL REGULATION SUITE 212, 400 WEST ROBINSON STREET ORLANDO, FLORIDA 32801 DARLENE F. KELLER, ACTING DIRECTOR DIVISION OF REAL ESTATE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
