Findings Of Fact Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts were found: At all times relevant hereto, Respondent was licensed as a real estate broker or salesman in the State of Florida having been issued license No. 0402589 in accordance with Chapter 475, Florida Statutes. The last license issued was as a broker-salesman, 2701 Vasser Road, Tallahassee, Florida 32308. Initially, Respondent was licensed as a real estate salesman effective April 21, 1983. On July 9, 1982, a complaint was filed with the Wisconsin Supreme Court against the Respondent by the Wisconsin Board of Professional Responsibility (Board) alleging that Respondent had engaged in dishonesty, fraud, deceit, misrepresentation, unprofessional conduct, had filed a false grievance, and had responded falsely to questions from the Board, in violation of *SCR 20.04, 20.04(4). 20128 and 22.07(2). The court then referred the matter to a referee pursuant to SCR 21.09(4). On January 21, 1983 the Respondent and the counsel for the Board entered into a stipulation wherein Respondent stipulated that: (a) his multiple representation of the corporation and individuals in connection with negotiation for, and sale of, the property by the corporation constituted a clear conflict of interest, in violation of SCR 20.24 and 20.28; (b) that his assertion in his opinion on title that the condominium documents met applicable state law constituted misrepresentation, in violation of SCR 20.04(4); (c) that his failure to advise purchasers of the corporation's financial problems constituted misrepresentation, in violation of SCR 20.04(4); (d) that his signing of the affidavit concerning the accuracy of the closing statement and distributing the closing statement constituted misrepresentation, in violation of SCR 20.04(4); and (e) that his response to the Board, in connection with the grievance, that he was not aware at the time of the purchase of any financial problems of the corporation was false and constituted misrepresentation, in violation of SCR 22.07(2). The referee filed his report with the Wisconsin Supreme Court on January 27, 1983, in which he made his findings of fact and conclusions of law consistent with the terms of the stipulation and recommended that Respondent's license to practice law be suspended for a period of sixty (60) days and that he be required to pay $2,500 toward costs and fees incurred. On April 27, 1983 the Wisconsin Supreme Court entered its order adopting the findings, conclusions and recommendation of the referee, with the exception that the Respondent be held liable for payment of the total costs of the disciplinary proceedings. In their briefs filed with court on the appropriateness of the recommended discipline to the professional misconduct, both parties noted that Respondent was cooperative in making his records available to the Board, that no trust account errors were found, that there was no conversion of client property, and that there had been no prior disciplinary actions against the Respondent. On July 21, 1983, the Wisconsin Supreme Court entered an Order extending the time until September 30, 1983 for Respondent to pay the costs ordered in its Order of April 26, 1983 or have his license to practice law revoked. On November 16, 1983, the Wisconsin Supreme Count entered its Order revoking Respondent's license to practice law in the State of Wisconsin for failure to comply with the Court's Order of July 21, 1983 extending the time for payment of costs in the disciplinary action. On Respondent's application for licensure as a real estate broker dated October 18, 1984 and filed with Petitioner on October 22, 1984, Respondent answered "no" to question 13(a) on the application which is as follows: Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended, in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or, is any proceeding pending? (emphasis supplied)
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations charged in the Administrative Complaint and that the Administrative Complaint be DISMISSED. Respectfully submitted and entered this 22nd day of October, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 22nd day of October, 1986.
The Issue The administrative complaints allege that John Maxfield failed to pay an appraiser for his work, he failed to maintain an office and sign at the address listed with the Florida Division of Real Estate, he failed to maintain trust funds in an escrow account, and he failed to release security deposits of tenants, in violation of Chapter 475, Florida Statutes and rules of the Florida Real Estate Commission. The issue for determination is whether these violations occurred and, if so, what disciplinary action against Maxfield's license is appropriate.
Findings Of Fact At all times relevant to the complaint, John R. Maxfield, was licensed by the State of Florida as a real estate broker-salesman, with license number 0130663. Michael Chambers is a real estate appraiser in Winter Park, Florida. Around August 1986, he was retained by Maxfield to conduct appraisals of some apartment complexes and a duplex. An associate of Maxfield's met Chambers at the property to give him access for the appraisals. After the appraisals were done, Maxfield failed to pick them up as he had agreed. Chambers went by the office listed on the business card given to him by Maxfield's associate, but could not find the office. He later found the office, but Maxfield's secretary did not have the payment for him. To date, Maxfield still has not paid the $600.00 appraisal fee, in spite of Chambers' several demands. From 1983 or 1984, until October 1986, Maxfield was the trustee of a land trust with several investor beneficiaries. Hideaway Delaney Apartments in Orlando, Florida is a property owned by the trust. Maxfield was the manager of the property until October 1986. He was relieved of his duties when the beneficiaries learned that other trust property was being foreclosed. While manager of the property, Maxfield received tenants' deposits through his agents, various resident managers. He never released those deposits to the trust beneficiaries, to the successor manager, John Capone Realty, or to the tenants, after he ceased serving as manager. The total amount of unaccounted for security deposits is $2245.00. In March 1987, in an interview with Maureen Harvey, a Division of Real Estate investigator, Maxfield admitted that he used the deposit money to off-set his own expenses. Earlier, in a civil action brought by some tenants seeking their deposits, Maxfield admitted that he owed the money and agreed to pay it. The deposit money remains unpaid. The administrative complaints allege that between October 1986 and March 1987, Maxfield failed to maintain an office and entrance sign at the business address he had registered with the Department of Professional Regulation. One complaint alleges the address as 103 Lucerne Circle, Orlando. The other complaint alleges the address as 203 Lucerne Circle, Suite 500, Orlando. Maxfield's license renewal forms indicate the address was 203 N. Lucerne Circle, Suite 500, Orlando. Assuming that the one complaint contained a typographical error, the testimony by DPR's witnesses did not clearly establish the dates they visited the premises and failed to find an office or sign. The investigator visited the address in April 1987, after the period alleged in the administrative complaints. Michael Chambers took photographs of the buildings on the site, much earlier in August 1986. As of June 1987, Maxfield's license renewal form lists his business address as Vistana Resort Development, Inc., 13500 State Road 535, Orlando, Florida.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: that a Final Order be entered, finding John R. Maxfield guilty of violations of Sections 475.25(1)(b), (d), and (k), Florida Statutes, suspending his real estate license for three (3) years, and thereafter placing him on probation for a period of two (2) years, under appropriate conditions to be established by the board. DONE AND RECOMMENDED this 26th day of February, 1988, in Tallahassee, Florida. MARY CLARK 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 day of February, 1988. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John R. Maxfield 9100 Meadowcreek Drive #648 Orlando, Florida 32821 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Executive Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 =================================================================
The Issue The issues in this cause are those promoted by the administrative complaint brought by the Petitioner against Respondent alleging a violation of Section 475.25(1)(f), Florida Statutes, through the entry of a plea of nolo contendere to a charge of vehicular homicide, a felony, as described in Section 782.071, Florida Statutes.
Findings Of Fact Petitioner, as a governmental agency in the State of Florida, licenses and regulates those persons who are engaged in real estate sales within Florida. The authority for this regulatory function may be found in Section 20.30, Florida Statutes, and Chapters 120, 455 and 475, Florida Statutes, and associated rules. Respondent has held a real estate salesman's license issued by the Petitioner during all relevant periods. On September 13, 1986, that license held by the Respondent was inactive. On October 13, 1986, Respondent activated his real estate salesman's license and it remained active at the point of final hearing. In October 1986, Respondent placed his real estate sales license with a real estate broker in Gainesville, Florida, Richard Fort Rogers. Richard Fort Rogers is the father of the Respondent. Respondent continues in his affiliation with his father's real estate brokerage operation. On September 13, 1987, Respondent was involved in an automobile accident in Gainesville, Alachua County, Florida. He was operating the motor vehicle in question and through that operation caused the death of Harold E. Thompson. Out of these circumstances, Respondent entered a plea of nolo contendere to the offense of vehicular homicide. Section 782.071, Florida Statutes. This disposition is set forth in Petitioner's composite exhibit 2 admitted into evidence. The plea was by negotiation in the case The State of Florida vs. Richard Fort Rogers in the Circuit Court, for the 8th Judicial Circuit of Florida, Alachua County, Court, #86-3203-CF-A. The amended information to which the Petitioner pled dates from December 10, 1986. The negotiated plea was entered on February 2, 1987. On that same date the Court entered an order accepting the plea. For this offense, adjudication of guilt was withheld, the Respondent was given three years' probation, required to pay court costs and was screened for alcohol counseling. Following the disposition of his case, by correspondence of February 13, 1987, as received by the Florida Real Estate Commission on February 17, 1987, Respondent advised the Commission of his plea of nolo contendere to the charge of vehicular homicide.
Findings Of Fact On October 3, 1975, Respondent filed an application with Petitioner for registration as a real estate broker (Stipulation, Petitioner's Exhibit 2). That said application contained therein Question 8 which is set forth in paragraph 2 of the Amended Complaint and to which Respondent answered "No." (Stipulation, Petitioner's Exhibit 2.) That thereafter the application was approved and the Respondent subsequently received his registration as a real estate broker and has been continuously registered the Petitioner as a broker since December 22, 1975 (Stipulation.) That at the time of the execution of the application, as aforesaid, Respondent'S answer to Question 8 was incorrect in that he failed to reveal, disclose and fully explain a Complaint filed against him on August 6, 1973, in the Circuit Court of the Sixth Judicial Circuit of the State of Florida, in and for Pinellas County, by one Kenneth Beard, an individual, which complaint alleges false representations on the part of the Respondent in a business transaction. A judgment of the aforesaid Circuit Court in the above-mentioned action was in the process of appeal at the time Respondent filed his application for registration as a real estate broker (stipulation.) Respondent testified at the hearing substantially as follows: After the civil action had been filed against him, he sought the advice of counsel who informed him that the complaint therein was defective as a matter of law. He was therefore of the opinion that there was not a viable suit against him at the time he filled out his application, and thus was not attempting to mislead or hide any facts from the Petitioner. He also felt that, since he had not, in fact, committed any fraud or misrepresented any matters to the purchaser of the business in question, a negative answer on the question in the application was justified. However, upon reflection at the hearing, he conceded that, probably he had misread the question and misconstrued its meaning. Respondent's good reputation for truth and veracity in the community and in his business dealings was attested to by past officials of the Clearwater, Largo, Dunedin Board of Realtors (Testimony of Merhige, Blanton).
Recommendation That the Complaint against Respondent, William D. Folz, be dismissed. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick W. Jones Staff Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Richard B. Moritz, Esquire 801 West Bay Drive Suite 704 Largo, Florida 33540
The Issue Whether Respondent's License No. 0003558 as a real estate salesman should be suspended, revoked, or the licensee otherwise disciplined for violation of Section 475.25(1)(e), Florida Statutes. Petitioner served a copy of its Administrative Complaint, Explanation of Rights, and Election of Rights upon the Respondent at the last address he had registered with the Commission, i.e., 6800 W. 16th Avenue, Hialeah, Florida 33014, by registered mail on July 31, 1975. Respondent executed the "Election of Rights" form in which he requested a hearing, on August 19, 1975, and returned it to Petitioner. On December 5, 1975, Petitioner mailed a copy of Notice of Hearing to the Respondent by registered mail to the same address. It was returned by the U. S. Post Office to Petitioner with the notation "Moved, Left No Address" (Exhibit 1). Accordingly, it was considered that Petitioner had complied with applicable requirements concerning notice and, the Respondent not being present at the time of hearing, the hearing was conducted as an uncontested proceeding.
Findings Of Fact Respondent received his registration as a real estate salesman on June 18, 1973, and has been continuously registered with Petitioner since that date (Exhibit 2). An Information filed by the State Attorney of the Eleventh Judicial Circuit of Florida, Number 73-3060, charged Respondent with nine counts of violating Section 832.05(3), Florida Statutes, by nine worthless checks in the amount of $50.00 each which were unlawfully drawn, made, uttered, issued or delivered to Winn Dixie Stores, Inc., during the period December 27, 1972 to January 8, 1973. A similar Information, Number 73-2663, was filed with respect to four checks to the Grand Union Company during the period October 18, 1972 through October 24, 1972 in the same amounts (Exhibits 3, 5). On September 13, 1973, Respondent pleaded guilty to the charges filed against him in the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, and an Order Withholding Adjudication was issued in Case No. 73-3060, finding the Respondent guilty based upon the entry of a guilty plea to the charge of unlawfully obtaining services, goods, wares, or other things of value by means of a worthless check or draft in the amount of $50.00 (nine counts) and withholding adjudication of guilt. On the same date, the same court issued another Order Withholding Adjudication of guilt in Case No. 73-2663 for the four fifty dollar checks involved therein (ExhibitS 4, 6).
Recommendation That the registration of Leonard H. Balkan as a real estate salesman be suspended for a period of two years. DONE and ENTERED this 3rd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Leonard H. Balkan Louis B. Guttmann, III, Esquire 6800 West 16th Avenue 2699 Lee Road Hialeah, Florida 33014 Winter Park, Florida
Findings Of Fact Respondent is duly registered as a real estate salesman and as a broker by Florida Real Estate Commission. On his application for registration as a salesman, in answer to question 9 on the application as to whether he had ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation, he answered "yes" and completed the "If yes, state details in full" part of the question with "traffic citation (speeding) 1970." On his application for registration as a broker some 16 months later he answered Question 9 "no". Exhibit 2, a certified copy of the court of record of Broward County, shows that on April 28, 1970, Respondent pleaded nolo contendere to the offense of attempted bookmaking and was fined $50. When questioned by the investigator for the Florida Real Estate Commission prior to the filing of this information, Respondent admitted that he had been arrested in California in 1960 and 1961 on charges of suspicion of assault and a traffic offense involving driving while under the influence of intoxicants. Testifying in his own behalf Respondent acknowledged that he had inadvertently failed to include those arrests on his application, and that in so doing he had no intention to conceal those arrests. The arrests for suspicion of assault involved a marital dispute with his former wife and those charges were dismissed. On the DWI charge he was fined $150. The breathalizer test he had taken was borderline and he was advised by the Public Defender that if he pleaded guilty he would be fined $150 as a first offender and if he employed the services of a lawyer to contest the charge the attorney's fee would be at least $250. He pleaded guilty to the charge. The attempted bookmaking arrest occurred while he was working in a bar in Deerfield Beach. The police suspected this bar was involved in bookmaking. Fetters had worked there only a week or two when two undercover agents, who had patronized the bar on a daily basis for several days, asked him to place a bet for them. He told them he had no information on how to place a bet, but after they insisted he took their money and made a call to someone he knew in Miami. The undercover agents then identified themselves and arrested him. Respondent holds a Cosmetology license in California, and an insurance salesman's license. He is currently working for Nichols' Realty in Boca Raton. His broker, Roy Nichols, has known Respondent for about three years and Respondent's reputation in the community is excellent. He has found Respondent's conduct exemplary both as a real estate salesman and as a family man.
Recommendation This case cane before the undersigned Hearing Officer, Division of Administrative Hearings on the Administrative Complaint by the Florida Real Estate Commission against the Respondent, Joyce H. Clemenz, charging her with being guilty of dishonest dealing, trick, scheme, device or breach of trust in a business transaction in violation of Subsection 475.25(1)(a), Florida Statutes. The charges in the Complaint stem out of allegations that the Respondent made personal long distance phone calls while employed as a real estate salesman. This case was noticed for hearing at the Offices of the Florida Real Estate Conssion, Coral Gables, Florida, and was heard on May 26, 1976. At that hearing the Respondent appeared and stated that she had not received Notice of Hearing, however, she waived the objection she might have had to that and agreed to proceed with the hearing. At that hearing the Real Estate Commission failed to present competent evidence which would support the statement of facts contained in the Information filed by the Real Estate Commission. One witness testified, Rose Marie George, an employee of the Magnuson Corporation, with whom the Respondent had been employee and to whom she is alleged to have charged these personal phone calls. Mrs. George stated that she receives the accounts payable for the Magnusom Corporation and that on several occasions makes note of unusually high telephone charges. She stated that she had been told that the Respondent had made some personal phone calls which were charged to the Magnusom Corporation. Mrs. George did not testify as to whether the Respondent made these telephone calls without permission or whether she had reimbursed the corporation for those calls. Furthermore, Mrs. George's testimony, except for that part which relates to her own responsibilities, was pure, unsubstantiated hearsay and cannot be the basis for any findings of fact relative thereto. See Subsection 120.58(1)(a), Florida Statutes. The only other item of evidence which the Real Estate Commission attempted to submit was a certified copy of the Judgment of the County Court for Dade County relating to the same transactions as described in the Administrative Complaint. The above exhibit was marked Petitioner's Exhibit No. 2 and was not admitted by this Hearing Officer for the reason that a Judgment in a civil action is not admissible in another proceeding to establish the truth of the allegations therein inasmuch as the Real Estate Commission produced no other evidence relative to this matter, it is the finding of this Hearing Officer that there was a complete absence of any substantial evidence which might support the truth of the allegations in the information filed by the Real Estate Commission and it is, therefore, RECOMMENDED that the Complaint issued in this matter be dismissed. DONE and ORDERED this 14th day of June, 1976, in Tallahassee, Florida. KENNETH G. OERTEL, Director Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 717 Ponce de Leon Boulevard Coral Gables, Florida 33134 Joyce H. Clemenz Post Office Box 431539 South Miami, Florida 33143
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Florida Real Estate Appraisal Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Iris Adames, is now and was at all times material hereto, a registered real estate appraiser in the State of Florida, having been issued license number RI0003454. On or about March 21, 1996, Respondent filed an application (dated March 8, 1996) with the Department for licensure as a registered real estate appraiser. Pertinent to this case, item 11 on the application required that Respondent answer yes or no to the following question: Have you ever 1) been convicted of a crime, 2) pled nolo contendere to any crime? (This question applies to any violation of any municipality, county, state, or nation, including traffic offenses --but not parking, speeding, inspection, or traffic signal violations-- regardless of whether you were placed on probation, had adjudication withheld, were paroled or were pardoned.) Respondent responded to the question by checking the box marked "N[o]." The application concluded with the applicant's signature immediately below the following affirmation: . . . I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. . . . Contrary to Respondent's response to item 11 on the application, the proof demonstrates that on October 23, 1995, Respondent pled nolo contendere to the crime of uttering a worthless check, a first degree misdemeanor, in the Circuit Court, Eighteenth Judicial Circuit, Brevard County, Florida, Case No. 94-23154-CF-A. The court entered an order withholding adjudication of guilt, placed Respondent on probation for a period of six months, and imposed a fine and costs totaling $105.65. On September 18, 1997, the Florida Department of Business and Professional Regulation, Division of Real Estate (Florida Real Estate Commission or FREC) issued an Administrative Complaint against Respondent, as a licensed real estate salesperson. That complaint alleged, in pertinent part, as follows: At the time Respondent made application for a real estate license, Respondent was asked to indicate whether or not [s]he had "ever been convicted of a crime, found guilty, or entered a plea or nolo contendere (no contest), even if adjudication was withheld. This question applies to any violation of the laws of any municipality, county, state, or nation . . . without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned." Respondent checked the "No" box. (Licensure Application, at Question 9). Respondent swore and attested that all answers and information contained in h[er] application were true and correct. Respondent's signature was duly notarized. On or about October 23, 1995, Respondent entered a plea of nolo contendere to one count of writing a worthless check, a first degree misdemeanor (§ 832.05, Fla. Stat.) A true and correct copy of the Order of Judgment is attached hereto, incorporated herein and made a part hereof by reference as Administrative Complaint Exhibit 2. Further, in connection with this investigation, mail addressed from Petitioner to Respondent was returned by the U.S. Postal Service noting that Respondent has moved without any forwarding address. COUNT I Based upon the foregoing, Respondent is guilty of obtaining a license by means of fraud, misrepresentation, or concealment in violation of § 475.25(1)(m), Fla. Stat. COUNT II Based upon the foregoing, Respondent is guilty of failing to timely advise Petitioner of a change of mailing address in violation of Rule 61J2-10.037, Fla. Admin. Code and, therefore, in violation of § 475.25(1)(e), Fla. Stat. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission to issue a Final Order as final agency action finding the Respondent(s) guilty as charged. The penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any of or all of the above penalties as provided by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. In addition to the foregoing, Petitioner requests an award of costs as provided by § 455.227(3), Fla. Stat. Respondent did not formally respond to the Administrative Complaint and on February 18, 1998, the Florida Real Estate Commission held a hearing on Petitioner's Request for an Informal Hearing and Motion for Final Order. Respondent was served with a copy of the notice of hearing and failed to appear. By final order dated February 18, 1998, and filed March 9, 1998, the Florida Real Estate Commission resolved the case, as follows: Upon a complete review of the evidence presented by the Department of Business and Professional Regulation, Division of Real Estate, the Florida Real Estate Commission finds: That the Respondent was properly served with the Administrative Complaint and failed to request a hearing or otherwise respond to the service of Administrative Complaint. See s. 120.60(5), Florida Statutes, and Rules 28- 5.111 and 28-6.009, Florida Administrative Code. That there are no disputed issues of material fact and, therefore, the Petitioner's Motion for an Informal Hearing, pursuant to s. 120.57(2), Florida Statutes, is granted. That the Petitioner has established a prima facie case. That the facts and legal conclusions contained in the Administrative Complaint are adopted as true and that violations of Chapter 475, Florida Statutes, have occurred, as stated in the Administrative Complaint, a copy of which is attached hereto as Exhibit A and made a part hereof. Therefore, the Commission ORDERS that the license of Iris Amor Adames be revoked. This Order shall be effective on date of filing with the Clerk of the Department of Business and Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, at Suite 309 North Tower, 400 West Robinson Street, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal. In her response to Count I of the Administrative Complaint, and again at hearing, Respondent explained she entered the plea of nolo contendere to the worthless check charge based upon advice of her court-appointed counsel even though (in her opinion) she was innocent of the charge. As for her negative response to the question posed on the application, Respondent averred she understood the judge to have directed her attorney to have her records sealed, she assumed he had done as directed, and consequently gave what she understood was an appropriate response to the question on the application. See Section 943.059(4), Florida Statutes. Here, Respondent's explanation for her failure to disclose her plea on her application is credited, and it is resolved that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing the application. In so concluding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter (and the propriety of her response to the question on the application) was, given her unfamiliarity with such matters, reasonable. 1/ Count II of the Administrative Complaint sought to take disciplinary action against Respondent based on the Final order of the Florida Real Estate Commission (FREC) which had disciplined (revoked) Respondent's licensure as a real estate sales person. As heretofore noted, that final order was premised on Respondent's failure to respond to a two-count Administrative Complaint. Count I was predicated on the same issue raised by the Department in the instant case, and Count II was premised on Respondent's "fail[ure] to timely advise [FREC] of a change in her mailing address." Here, Respondent explained her failure to respond to the FREC complaint as follows: . . . when I called Tallahassee, they told me that you have 48 hours to respond, or get a lawyer. I say excuse me, I cannot just go and get a lawyer. Because, why? Because, now in 1998, since December 1997, I've been into a domestic violence case, and I almost -- Me and my daughter almost got killed. And, in the meantime, the father of my child took my car, took every means for me to make my living. I was almost fighting all the time. December, January, February, I was fighting eviction. I was fighting the court. And, all the problems. And, I have all the paperwork here. And, I cannot take more stress. Now, you ask me my life -- My life, and the life of my child is priority. I cannot just go, and hire a lawyer. I don't have the money. I don't have the means. You have to give me more time. And to say that I am sorry it's only 48 hours, you should had [sic] been in response to this before, and that's it. When she told me that, what else can I do? So, I said well, fine. One day I will go back, and try to reopen the case. There is nothing that I can do at this moment. (Transcript, pages 28-30.) With regard to her failure to keep FREC informed regarding her current address, Respondent explained: The reason I didn't keep changing my addresses is because my realtor appraiser license, the person who supervised my work, Gary Eilen, he's the father of my child, he's the person who I get the injunction for. That's why sometimes I just tried to disappear from his life. And, when -- That's one of the complaints that I don't keep moving with my addresses, but he [could] get it from the state [if she informed the state of her new address. Therefore, for safety reasons, she chose not to notify FREC of her new address]. (Transcript, page 39.) Respondent's testimony was candid and credible, and her domestic problems (at the time of the FREC proceeding) well- documented. See Respondent's Exhibit 4. Had Respondent the means and opportunity to contest the FREC complaint, the conclusion of that proceeding would, most likely, have mirrored the conclusions reached in this case. In sum, given the conclusion reached here that (by her response to the application at issue in this case) Respondent did not intend to mislead or deceive the Department, a de minimus penalty should be imposed as a consequence of the FREC Final Order, which was essentially entered by default and premised on the same issue (of non- disclosure) raised in this case (and resolved favorably to the Respondent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent not guilty of violating of Subsection 475.624(12), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further RECOMMENDED that the final order find the Respondent guilty of violating Subsection 475.624(6), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive a reprimand. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 25th day of October, 1999.
