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
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent's registration as a real estate broker be suspended for a period of seven (7) days. Respectfully submitted and entered this 3rd day of June, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Louis B. Guttmann III Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Gerard L. Crawford Route L, Box 157 Feeport, Florida 32439 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DIVISION OF OCCUPATIONS DEPARTMENT OF PROFESSIONAL AND OCCUPATIONAL REGULATION FLORIDA REAL ESTATE COMMISSION FLORIDA REAL ESTATE COMMISSION, An Agency of the State of Florida, Plaintiff, PROGRESS DOCKET NO. 2853 WALTON COUNTY vs. DOAH CASE NO. 76-1034 GERARD L. CRAWFORD, Defendant. /
Findings Of Fact Respondent David R. Kelly was certified by the Criminal Justice Standards and Training Commission on August 8, 1976, and was issued a certificate, No. 0214196. On March 1O, 1986, in Pensacola, respondent Kelly entered a plea of nolo contendere to three counts charging simple misdemeanor battery in violation of Section 784.03, Florida Statutes; and the Honorable Lacey A. Collier accepted the plea as Judge of the Circuit Court for the First Judicial Circuit. Respondent's Exhibit No. 1. On April 9, 1986, Judge Collier entered an order withholding adjudication of guilt and placing respondent on probation. Respondent's Exhibit No. 2. At no time has respondent ever been convicted of a crime. (T.19) Having consistently maintained his innocence, Respondent's Exhibit No. 5, respondent Kelly nevertheless pleaded nolo contendere, on the advice of counsel, for fear he could "lose through the news media," (T. 16) even if acquitted. At the time the battery allegations arose, respondent Kelly worked for the Florida Highway Patrol which dismissed him on account of the allegations. In subsequent proceedings before the Public Employees Relations Commission (PERC), the alleged victim testified, as she had earlier testified on deposition in the criminal proceedings, that the respondent had fondled her breasts. Petitioner's Exhibits No. 1 and 2. The PERC proceedings eventuated in orders explicitly rejecting respondent's accuser's testimony and recommending his reinstatement. Respondent's Exhibit No. 4. The evidence adduced in the present case does not show whether or not respondent perpetrated one or more batteries on his accuser. She did not testify.
The Issue The issue in this cause is whether the Respondent's real estate license should be suspended, permanently revoked, or otherwise disciplined based upon alleged violations of Chapter 475, Florida Statutes.
Findings Of Fact Since 1977, the Respondent has been a licensed real estate salesperson in the State of Florida having been issued license number 0167049. The last license issued to the Respondent was as a salesperson for Tony Bucci Realty, Inc., 2216 East Olive Road, #108, Pensacola, Florida 32514. On November 2, 1983, a criminal information was filed in the Circuit Court of Escambia County, Florida, charging the Respondent as follows: Between February 1978 and May 1978, at and in Escambia County, Florida and Orange County, Florida: did unlawfully agree, conspire, combine, or confederate with another person or persons, to wit: Kenneth Massoud, to commit a criminal offense, to wit: counterfeiting of United States Currency. The charge constituted a criminal violation of Section 831.18, Florida Statutes, and Subsection 777.04(3), Florida Statutes, (conspiracy). At the time, counterfeiting was a felony and conspiracy to counterfeit was a misdemeanor. On January 12, 1984, the Respondent pled nolo contendere to the charge of conspiracy to commit counterfeiting, a violation of Section 777.04(3), Florida Statutes, a first degree misdemeanor, and was adjudged guilty and sentenced to six months in the county jail. The Respondent denied that he was guilty of the charges contained in the information or the charge to which he pled. On or about June 28, 1985, the Florida Bar filed a complaint against the Respondent seeking to disbar him for his conduct in the counterfeiting case. Additionally, the Respondent was charged with trust account irregularities related to his practice of law. The Respondent was found to have violated disciplinary rules relating to trust accounting procedures, the accounting of clients' interest shortages. Likewise, he was guilty of the charge of conspiracy to counterfeit. The Supreme Court of Florida found that the referee's findings of fact and recommendations of guilt were amply supported. Based on these findings, on October 2, 1996, the Respondent was disbarred from the practice of law in Florida. However, the Respondent testified that he is eligible to apply for re On June 13, 1990, an information was filed charging the Respondent with one count of possession of more than 20 grams of cannabis, in violation of Subsection 893.13(1)(f), Florida Statutes, a third degree felony, and one count of possession of marijuana with the intent to sell, deliver or manufacture, in violation of Subsection 893.13(1)(a), Florida Statutes, punishable as a third degree felony. On October 2, 1990, the Respondent entered a plea of nolo contendere to possession of a controlled substance without a prescription and possession of a controlled substance with the intent to sell or deliver. The court withheld adjudication and placed the Respondent on supervised probation for two years. At no time material hereto did the Respondent notify the Florida Real Estate Commission in writing of having entered a nolo contendere plea to a felony or to a misdemeanor. Respondent did not notify the Commission because he misunderstood his obligation to do so since he had not pled guilty nor been convicted of a felony. To his credit, he has not been subject to discipline or sanction by the Florida Real Estate Commission since his initial licensure. Finally, it is likely that the loss of his real estate sales license will leave Respondent in a more destitute position than his already extremely low income status renders him since Respondent's main income is from his employment as a licensed real estate salesperson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Real Estate Commission finding the Respondent: Guilty of having been convicted or found guilty, regardless of adjudication, of a crime which directly relates to the activities of a licensed real estate salesperson or involves moral turpitude or fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes, as charged in Count I; Guilty of a course of conduct or practices which shows that the Respondent is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(1)(o), Florida Statutes, as charged in Count II; Guilty of not having informed the Florida Real Estate Commission in writing within thirty (30) days of having pled guilty or having been convicted of a felony and, therefore, is in violation of Subsection 475.25(1)(p), Florida Statutes, as charged in Count III; and Guilty of having had another state agency suspend the license or registration of, or impose a penalty against it, as set forth in Subsection 475.455(2), Florida Statutes, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes, as charged in Count IV. It is FURTHER RECOMMENDED that the Final Order should further order all of the Respondent's real estate licenses, registration, certificates, and permits be revoked. DONE AND ENTERED this 21st day of April, 1994, in Tallahassee, Florida. DIANNE CLEAVINGER 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 April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3843 Petitioner's Proposed Findings of Fact The facts contained in paragraphs numbered 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. Respondent's Proposed Findings of Fact The facts contained in paragraphs 1, 2, 3, 5, 8 and 11 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 6, 7, 10 and 12 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraph 9 of Respondent's Proposed Findings of Fact are adopted, except for the last sentence, which is rejected. COPIES FURNISHED: James H. Gillis, Esq. Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900 Eric Eggen, Esq. Suite 347, Blount Building 3 West Garden Street Pensacola, FL 32501 Darlene F. Keller, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, FL 32802-1900 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether respondent violated sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, by the manner in which she handled the real estate transaction involving the property located at 29 S. Lawsona.
Findings Of Fact Respondent is a licensed real estate salesman and was a licensed real estate salesman at all times relevant to the instant charges. In September 1983, respondent was registered as a real estate salesman with 100 percent Real Estate Incorporated. Robert Sinclair was the qualifying broker for 100 percent Real Estate Incorporated. On or about September 29, 1983, respondent obtained an Offer of Purchase on a home located at 29 S. Lawsona from Linda O'Leary and James T. Bagley along with a check from James T. Bagley in the amount of $500 as earnest money. The resulting contract was entered into evidence as Petitioner's Exhibit 1. On the day the purchasers signed the contract, but after they had signed the contract, the purchasers visited the home and discovered that there appeared to be extensive termite damage. Mr. Bagley was concerned about the termite damage, as was the respondent, and therefore the respondent promised Mr. Bagley that she would hold his check until she could get the termite estimate from Mr. Babcock and check with the termite company to find out how bad the damage was. Although the respondent was able to obtain the termite estimate from Mr. Babcock's office the following day, she was unable to contact the person who had conducted the termite inspection. She also was unable to contact the purchasers. She was unable to contact Mr. Bagley for approximately a week and it was another week before Mr. Bagley went to the house with a contractor to determine how much it would cost to repair the termite damage. The contractor thought that the minimum cost would be $10,000. At that point Mr. Bagley decided that he was no longer interested in the house, and the respondent returned his check. The $500 check was never turned over to Robert Sinclair or 100 percent Realty. Respondent knew she should not have held the check and was aware that by doing so she was, as she stated, "in hot water." However, respondent also believed that the seller had misrepresented the extent of the termite damage and was misinterpreting the terms of the contract. Mr. Sinclair was unaware of the existence of the contract until the end of October, although he had a discussion earlier with the respondent regarding whether an "as is" clause in a contract could override the specific printed provision of the standard contract related to termite infestation. That discussion was obviously related to the contract on the house on Lawsona.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order finding that the respondent is guilty of violating sections 475.25(1)(b) and 475.25(1)(k), Florida Statutes, and suspending respondent's license for a period of three (3) months. DONE and ENTERED this 1st day of May, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS 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 1st day of May, 1985. COPIES FURNISHED: Harold Huff, Executive Director Department of Professional Regulation P. O. Box 1900 Orlando, Florida 32802 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Langford, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Ms. Anne Rockafield 713 Woodward Orlando, Florida 32803 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent has been a licensed real estate broker salesman in the State of Florida at all times material hereto having been issued license number 0158288 in accordance with Chapter 475, Florida Statutes. On June 10, 1985 a Recommended Order was entered by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118 concerning Respondent, which recommended that "a Final Order be issued suspending Respondent's license for a period of two (2) years and imposing an administrative fine in the amount of one thousand dollars ($1,000)." On July 16, 1985 the Florida Real Estate Commission entered a Final Order imposing the penalty against Respondent which had been recommended by the undersigned Hearing Officer in Division of Administrative Hearings Case Number 85-0118. The Final Order provided further that, "This Order shall be effective thirty (30) days from the date of filing, with the Clerk of the Department of Professional Regulation." The Final Order was filed with the Clerk of the Department of Professional Regulation on July 24, 1985. To date, Respondent has not paid the $1,000 fine imposed by the Florida Real Estate Commission in Division of Administrative Hearings Case Number 85- 0118. Petitioner contends that Respondent was required to pay the $1,000 fine within thirty (30) days of entry of the Final Order, referenced above. Rule 21V-10.31, Florida Administrative Code, imposes a thirty-day time limit for the payment of fines imposed by the Florida Real Estate Commission from the date of imposition by order of the Commission.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued revoking Respondent's license-number 0158288. DONE AND ENTERED this 24th day of November, 1986 in Tallahassee, Florida. DONALD D. CONN 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 24th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0989 Rulings on Petitioner's Proposed Findings of Fact: Adopted in Findings of Fact 1 and 3. Adopted in Findings of Fact 3 and 4. COPIES FURNISHED: Susan Hartman, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Roy Ahringer 232 Harmony Avenue Lake Placid, Florida 33852 Harold Huff Executive Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based on the admissions of the Respondent, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact: Respondent Larry L. Toney is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0089521 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker, t/a Larry L. Toney Realty, Inc., 4629 Moncrief Road West, Jacksonville, Florida 32209. At the time of the events described below, Ernest W. Mabrey was the owner of a house located at 3926 Perry Street, Jacksonville, Florida. On or about March 3, 1986, the Respondent met with Josephine Watkins, who is the daughter of Ernest W. Mabrey, at her home in Lake Butler, Florida, and advised her and Mr. Mabrey that the property described above, then owned by Mr. Mabrey, was in foreclosure. Ernestine Byrd, another daughter of Mr. Mabrey, was also present. An action to foreclose the mortgage on the subject property had in fact been filed at the time the Respondent met with Ernest W. Mabrey and members of his family. The Respondent requested that Ernest W. Mabrey sign a warranty deed to evidence the fact that he, Ernest W. Mabrey, had no interest in saving the subject property from the then pending mortgage foreclosure action. Josephine Watkins and Ernestine Byrd discussed the proposed transaction before any papers were signed. Ernest W. Mabrey did not object to transferring the subject property. On or about March 3, 1986, Ernest W. Mabrey, as grantor, signed a warranty deed which conveyed the subject property to Emory Robinson, Jr. Mr. Mabrey willingly signed his name to the warranty deed with the understanding that he was releasing his interest in the subject property because he was sick and neither he nor his daughters had the funds necessary to redeem the property. Josephine Watkins helped her father, Mr. Mabrey, write his name on the warranty deed and Ernestine Byrd signed the warranty deed as a witness to her father's signature. At the time the warranty deed was signed, no payments had been made on the mortgage for approximately five years. The Respondent did not promise to pay any money to Mr. Mabrey or his daughters in connection with the transfer of the subject property, nor did they expect to receive any money. The Respondent did not forge any signatures on the warranty deed described above. All of the signatures on that warranty deed are genuine. The grantee in the subject transaction, Emory Robinson, Jr., paid the holder of the first mortgage the sum of $6,787.11 in order to bring the payments to a current status and he assumed the mortgage. The mortgage foreclosure action was then voluntarily dismissed.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of May, 1988, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 5th day of May, 1988. APPENDIX TO RECOMMENDED ORDER The following are my specific rulings on all proposed findings of fact submitted by the parties. Findings Proposed by Petitioner: Paragraphs 1, 2 and 3: Accepted. Paragraph 4: First two lines accepted. Last line rejected as not supported by competent substantial evidence. Paragraph 5: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is rejected as constituting subordinate and unnecessary details. Paragraph 6: Rejected as contrary to the greater weight of the evidence. Paragraph 7: Accepted in substance, with additional findings for clarity and completeness. Paragraph 8: It is accepted that the house was conveyed to Mr. Robinson. The remainder of this paragraph is rejected as contrary to the greater weight of the evidence or as not supported by competent substantial evidence. Findings Proposed by Respondent: All of the findings proposed by the Respondent have been accepted in whole or in substance, except as specifically set forth below. In making my findings of fact, I have omitted a number of unnecessary details proposed by the Respondent. Paragraph 8: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as constituting subordinate and unnecessary details. Paragraph 19: Rejected as subordinate and unnecessary details and as legal argument. COPIES FURNISHED: JAMES H. GILLIS, ESQUIRE DIVISION OF REAL ESTATE POST OFFICE BOX 1900 ORLANDO, FLORIDA 32802 HENRY E. DAVIS, ESQUIRE ROBERTS & DAVIS 816 BROAD STREET JACKSONVILLE, FLORIDA 32202 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 The Respondent, George N. Osburn, is a licensed real estate salesman having been issued license number 0065910 and he was so licensed on or about February 26, 1979. The Petitioner, the Department of Professional Regulation/Board of Real Estate (now Florida Real Estate Commission), is an agency of the State of Florida, having jurisdiction over licensing and regulatory matters concerning real estate salesmen and brokers. On February 26, 1979, the Respondent went to the home formerly occupied by his former wife and himself prior to their divorce, which was final before the above date. The Respondent went to her house to obtain some records which he needed to execute his Federal Tax Return. The Respondent came on the porch of the house and walked into the house where his former wife and a Mr. Lacey were seated on the couch. The Respondent's former wife told the deputy who investigated the incident that night, and who testified at the hearing, that she had invited the Respondent in. Mr. Lacey testified at the hearing that the Respondent simply walked in uninvited. The deputy, in the deposition taken prior to the hearing, acknowledged that Mrs. Lacey, the Respondent's former wife, told him on the evening of the investigation of the incident that the Respondent came in at her invitation. Mrs. Lacey and Charles Lacey maintained at the hearing that the Respondent came in their premises uninvited. Thus, the evidence is conflicting on whether the Respondent entered the premises of his former wife without permission, but there is no preponderant evidence which establishes that he entered without invitation. There is no question, however, that he did not force entry. The former Mrs. Osburn discovered no items of property missing from her premises after the Respondent left. The Respondent was ultimately charged with burglary and upon his attorney's advice at the time, entered a "best interest" plea of nolo contendre to the charge in return for which he was promised and received a one-year probation with adjudication of guilt withheld. The acts the Respondent was charges with committing as a basis for the burglary charge occurred February 26, 1979. The Order of the Circuit Court placing the Respondent on one-year probation, with adjudication of guilt withheld, was entered on approximately May 7, 1981. The Respondent was not shown to have any previous violations assessed against his license.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence in the record and pleadings and arguments of counsel, it is, therefore RECOMMENDED: That the Respondent, George N. Osburn, be found not guilty and that the Administrative Complaint filed in this cause be DISMISSED and case number 82-175 be hereby CLOSED. DONE and ENTERED this 20th day of August, 1982, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1982. COPIES FURNISHED: Mark P. Kelly, Esquire FREEMAN & LOPEZ, P.A. 4600 West Cypress, Suite 410 Tampa, Florida 33607 Bernt Meyer, Esquire 2072 Ringling Boulevard Sarasota, Florida 33579 Frederick H. Wilsen, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 C. B. "Joe" Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
