Findings Of Fact At all times relevant hereto, respondent, Landmark Real Estate and Investment Exchange, Inc. (Landmark), was a corporation licensed as a broker. It holds license number 0170938 issued by petitioner, Department of Professional Regulation, Division of Real Estate (Division). Respondent, Stephen P. McCrady, was a licensed real estate broker having been issued license number 0227524 by petitioner. McCrady was also the qualifying broker and officer of Landmark. License renewal fees have apparently not been paid by respondents since 1984 and their licenses are accordingly considered to be inactive. However, such licenses can be reactivated by respondents paying the required fees and completing any necessary continuing education requirements. At the present time, McCrady's license has a status of "pending litigation" because of the instant proceeding. On October 28, 1983, the Division (then the Florida Real Estate Commission) entered a Final Order against respondents in which respondents were reprimanded and ordered to pay a $500 fine within thirty days from the date of order. This fine was never paid. On April 3, 1984, respondent McCrady filed a chapter 7 petition in the United States Bankruptcy Court for the Southern District of Florida. On September 17, 1984, that Court entered a Discharge of Debtor order which released the debtor (McCrady) "from all dischargeable debts" and declared null and void certain other debts. The order further provided that "all creditors who [sic] debts are discharged ... (or) whose judgments are declared null and void ... are hereby enjoined from commencing, continuing or employing any action, process or act to collect, recover or offset any such debt as a personal liability of the debtor." Respondent Landmark did not file a petition nor was it a party to McCrady's bankruptcy proceeding. When the agency Final Order was entered, McCrady could not afford to pay the $500 fine. However, he telephoned a Division attorney and asked if he could pay the fine by installments. He was told he could not do this. Shortly afterwards he filed for personal bankruptcy. It was his impression that the bankruptcy proceeding discharged all debts, including the $500 administrative fine. McCrady did not advise the Division that he had filed for bankruptcy until after the complaint in this proceeding had been filed. McCrady intends to again use his real estate license in the future. Because of serious personal and financial problems, he has not used the license for several years.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondents be found guilty of violating Rule 21V-10.31, Florida Administrative Code, and Subsection 475.25(1)(e), Florida Statutes (1985), and that they each be required to pay $250 within thirty days from date of the final order in this proceeding to satisfy the terms of the Final Order previously entered on October 23, 1983. Otherwise, their licenses should be revoked. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of August, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1145 Petitioner: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. COPIES FURNISHED: Susan J. Hartman, Esquire Post Office Box 1900 Orlando, Florida 32802 Ronald R. Rogowski, Esquire 628 S.E. 5th Avenue Ft. Lauderdale, Florida 33301 Mr. Harold R. Huff, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received. Mr. Edwards never received any payment of the debt owed by the Respondent. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard Fernandez, be revoked. DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS 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 9th day of June, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
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 Based on the exhibits received in evidence and on the testimony of the only witness called at the hearing, I make the following findings of fact. Respondent is now and was at all times material hereto a licensed real estate salesman in the state of Florida having been issued license number 0447789 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, c/o Commercial Investment Real Estate, Inc., 1804 Riverview Drive, Post Office Box 3847, Indialantic, Florida 32901. On May 12, 1986, in the United States District Court, Western District of Virginia Roanoke, the Respondent was found guilty of one (1) count of conspiracy to distribute drugs and one (1) count of interstate travel to promote illegal activity in violation of federal law, whereupon the Respondent was sentenced to three (3) years confinement, a $5,000 fine, and three (3) years probation upon release from custody. The Respondent timely notified the Florida Real Estate Commission of the felony convictions. As a result of the foregoing convictions, the Respondent is presently confined to a federal prison. Am appeal of the foregoing convictions is presently pending before a federal appellate court. Respondent's wife, who has not been charged with any violations, is presently employed as a licensed real estate salesperson in Florida. Inasmuch as her last name is the same as Respondent's last name, Respondent is concerned that publication in the FREC newsletter of news regarding discipline imposed on Respondent would have a negative impact on his wife's business reputation.
Recommendation Based on all of the foregoing, it is recommended that the Florida Real Estate Commission enter a final order in this case to the following effect: Finding the Respondent guilty of viola- tions of Section 475.25(1)(f) and (n), Florida Statutes, as charged; Suspending the Respondent's license for a period of five (5) years; Providing that in the event the appeal of Respondent's criminal convictions is successful, the suspension of Respondent's license will be rescinded; and Providing that notice of disciplinary action against Respondent will not be published in the Commission's newsletter until the appeal of Respondent's criminal convictions is final, and then only if that appeal is unsuccessful. DONE AND ENTERED this 18th day of March, 1987, at Tallahassee, Florida. M. 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 18th day of March, 1987. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. James E. Stivers 31492-083 Post Office 600 Dorm 1 F.P.C. Eglin Eglin AFB, Florida 32542 Harold Huff, Executive Director Division of Real Estate Florida Real Estate Commission 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether respondent's real estate broker's license should be revoked or otherwise disciplined on the grounds: (1) that he operated as a real estate broker without holding a valid and current license, and (2) that he is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction. Background By administrative complaint dated October 30, 1981, petitioner Department of Professional Regulation, Florida Real Estate Commission 1/ ("Department"), charged respondent William A. Canty ("respondent") with six violations of the Florida Real Estate Law, Chapter 475, Florida Statutes (1979). Respondent disputed the charges and requested a Section 120.57(1) proceeding. On November 30, 1981, the Department forwarded this case to the Division of Administrative Hearings for assignment of a hearing officer. Hearing was thereafter set for April 23, 1982. At hearing, the Department voluntarily dismissed Count Nos. Three through Six, inclusive, leaving only Count Nos. One and Two. Count One alleges that respondent's broker's license expired; that he then negotiated a real estate transaction in violation of Sections 475.42(1)(a) and 475.25(1)(a), Florida Statutes (1979). Count Two alleges that in connection with this real estate transaction, respondent signed a sales contract incorrectly acknowledging receipt of a $5,000 earnest money deposit, when, in fact, he had received a demand note; that the seller was led to believe that he held a $5,000 earnest money deposit in escrow; that such actions constituted misrepresentation, false promises, false pretenses, dishonest dealing, and breach of trust in a business transaction, all in violation of Section 475.25(1)(b), Florida Statutes (1979). The Department called Robert S. Harrell and Alfred C. Harvey as its witnesses, and offered Petitioner's Exhibit Nos. 1 through 3 into evidence, each of which was received. Respondent testified in his own behalf and Respondent's Exhibit 2/ No. 1 was received in evidence. The transcript of hearing was received on April 27, 1982. Neither party has filed proposed findings of fact and conclusions of law. Based on the evidence presented at hearing, the following facts are determined:
Findings Of Fact As to Count One Respondent is a licensed Florida real estate broker. He holds license No. 0012715 and his business address is 988 Woodcock Road, Orlando, Florida. (Testimony of Canty; P-1.) Since obtaining his broker's license in the early 1970s, respondent has earned a livelihood as a real estate broker. He has been a sole practitioner, having never employed any other person in connection with his practice. (Testimony of Canty.) A real estate broker's license must be renewed every two years. Effective April 1, 1978, respondent paid the requisite fee and renewed his then existing broker's license the new expiration date was March 31, 1980. (P-1.) On March 31, 1980, respondent's broker's license expired for failure to renew. His failure to timely renew was due to simple inadvertence; he admits that it was an oversight on his part. (Testimony of Canty; P-1.) As soon as he realized his omission, he filed a renewal application and paid the requisite $40 fee in addition to a $15 late fee. His license renewal became effective on July 25, 1980. (Testimony of Canty; P-1.) In May, 1980, respondent negotiated, prepared, and assisted in the execution of a written contract for the sale and purchase of 1.6 acres, including a 21,000 square-foot warehouse, located at 315 West Grant Street, Orlando, Florida. The seller was Alfred Harvey, the buyer was Preferred Services, Inc., and the purchase price was $208,000. The contract called for the buyer to pay the sales commission under separate agreement with respondent. The commission agreement never materialized since the sales transaction failed to close. But, the buyer understood that he had an obligation to pay a real estate commission, and respondent fully expected to receive one. (Testimony of Canty, Harrell.) As to Count Two Prior to the parties' execution of the sales agreement mentioned above, respondent and the buyer, Robert Harrell, of Preferred Services, Inc., discussed with Alfred Harvey, the seller, the acceptability of using a demand note as the $5,000 earnest money deposit required by the agreement. (The buyer wished to avoid tying up his funds in escrow during the extensive time required to obtain Small Business Administration approval for assuming the existing mortgage loan.) The seller agreed to the depositing of a $5,000 demand note. 3/ (Testimony of Canty, Harrell.) When the sales contract was executed by the parties, respondent acknowledged on page 2 that he held the specified earnest money deposit in escrow. The deposit was a $5,000 demand note. He did not indicate on the face of the contract that the deposit was in the form of a demand note. But, neither did he indicate that the deposit was in cash or check form. Respondent acknowledges that he was "sloppy" in failing to indicate on the contract that the deposit was a demand note. (Testimony of Canty.)
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be found guilty of violating Sections 475.42(1) and 475.25(1)(a), F.S., and reprimanded. DONE AND RECOMMENDED this 19th day of May, 1982, 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 19th day of May, 1982.
Findings Of Fact At all times pertinent to this hearing, The Vacation Shoppe, Inc., was a real estate brokerage corporation licensed by the State of Florida and the Florida Real Estate Commission was the agency responsible for regulating the practice of real estate in Florida. On or about April 7, 1987, the Florida Real Estate Commission filed an Administrative Complaint against Mike W. Trowbridge and Barbara Harvey Cage, registered real estate brokers, and The Vacation Shoppe, Inc., a registered real estate brokerage corporation, alleging that the three Respondents had unlawfully shared real estate commissions with non-licensed personnel. A formal hearing on the matter was held before the undersigned, a Hearing Officer with the Division of Administrative Hearings, who on December 4, 1987 entered an Order finding that DPR had failed to establish the alleged violations and recommending that the complaint against all Respondents be dismissed. This was done by the Florida Real Estate Commission by its Final Order of January 19, 1988. The filing of the Administrative Complaint was brought about by a complaint filed with the Commission by an individual by the name of Gerald Hartman who, on October 31, 1986, introduced DPR's investigator, Mr. Harris, to a Mr. and Mrs. Paquette. The Paquettes, formerly managers of a resort condominium and employed by IRPM, a management company, indicated they had been paid $10.00 in cash for each apartment they rented for the Respondent, The Vacation Shoppe, by Keith Trowbridge, the owner of IRPM. The Paquettes indicated that when Keith Trowbridge brought the last payment in cash for Mrs. Paquette and another employee, he stated that due to a complaint filed against him by Mr. Hartman, he could no longer pay the rental commissions by check as he had previously done. The Paquettes were not licensed real estate professionals. When Mr. Harris received this information, he contacted Respondent Cage at the office of The Vacation Shoppe, Inc. where she gave him rental forms verifying Mrs. Paquette had arranged certain rentals for TVS. Mr. Harris assumed the Paquettes and the other manager had been employed by TVS and contends Respondent Cage did not correct this assumption when he made the connection, but he did not attempt to verify their status. By the same token, Mr. Harris assumed Keith Trowbridge owned TVS at the time the questioned payments were made. The evidence indicates, however, that Keith Trowbridge had no priority interest in TVS and made his payments to the Paquettes as he did as a continuation of a long-Standing practice to reward employees of his company, IPRM. Keith Trowbridge may well have had some hidden interest in TVS, but no evidence was presented to establish this fact. Mr. Harris stated at this hearing, "It was common knowledge that Keith Trowbridge owned TVS. No one denied that." while no one may have denied it to Mr. Harris, a strong denial was presented at the hearing on the original complaint and no evidence was presented to contest the denial. Based on the above information, Mr. Harris concluded the evidence showed that Mike Trowbridge and Barbara Cage, both employees of TVS, were guilty of paying commissions to non-licensed people even though Mrs. Paguette had indicated that Keith Trowbridge, not Mike Trowbridge, had made the payments He relied on his belief, contrary to the evidence, that Keith Trowbridge owned TVS; his understanding that Keith Trowbridge had previously surrendered his real estate license in another matter arising out of a complaint filed by Mr. Hartman; and his knowledge that Barbara Cage had agreed to a prior consent order regarding the payment by her of unauthorized commissions. Mr. Harris' Reports of Investigation were referred to the Probable Cause Panel of the Florida Real Estate Commission for consideration of possible action. Ms. Pilar Montes, a Commissioner, was a member of that Panel and reviewed the investigative files relating to this case both before the Panel convened and again at the meeting. Ms. Montes was led to the conclusion that the three Respondents here were guilty of the violation alleged by what she perceived as evidence they were making the unauthorized payments. One of the items which she considered was the Cease and Desist Order signed by Respondent Cage. In Ms. Montes' words, "if she was not guilty, why did she sign the Order?" Mrs. Montes did not independently investigate the facts but concedes that the fact Respondent Cage signed the Cease and Desist Order in a prior case had some effect on her conclusion that she was also guilty in the instant case. She also considered the statements of the Paquettes and Ms. Minor, the other lady paid by Keith Trowbridge, and though they indicated the money was paid by Keith Trowbridge, Ms. Montes believed he was "involved" with TVS. The Report of Investigation of Mike Trowbride indicates in the investigator's summary of his interview with Keith Trowbridge that Keith Trowbridge is the owner of The Vacation Shoppe. There is no independent evidence of that but Ms. Montes relied on it as a member of the Probable Cause Panel. As she clearly stated at the hearing, "It's not our job to go beyond the report." Ms. Montes cannot say if she would have reached a different conclusion on voting Probable Cause had she known that Keith Trowbridge was not an owner or director of TVS. She also did not consider the fact that both Mike Trowbridge and Barbara Cage had indicated they did not know what Keith Trowbridge was doing. She and, apparently the remaining Panel members relied wholly on a report of investigation which was, it appears, inaccurate and misleading, based on unsupported assumptions and unjustified conclusions. When the Administrative Complaint was filed and served on the Respondents, they contacted attorney Jack P. Pankow who represented all three at the formal hearing herein. Mr. Pankow billed The Vacation Shoppe a fee of $3,542.50 plus reimbursement for the cost of the transcript of $303.75. The fee and transcript cost was paid by the billee, TVS. Mr. Pankow billed for 28 and 1/4 hours at an hourly rate of $125.00 per hour which has been his standard hourly fee for the past 5 years. Robert Henderson, an attorney who has practiced in a general trial practice in Lee County since 1972 reviewed Mr. Pankow's file in this case for reasonableness. The file was made up of several sections including the pleadings filed by all parties, memoranda prepared by Mr. Pankow, 18 letters from Mr. Pankow to various individuals, a telephone log relevant to this case, a substantial legal research file, a production and discovery sub-file containing information on the various witnesses, a transcript of the formal hearing, and time sheets prepared by Mr. Pankow which indicated that as of the filing of the Motion for Attorney's Fees, counsel had expended more than 28 hours on this matter. Mr. Henderson has known Mr. Pankow from practice with and against him for approximately 12 or 13 years. The rate of $125.00 per hour is standard for middle level attorneys and is reasonable. Mr. Henderson is of the opinion that considering the nature and complexity of this case there was nothing to justify charging more than the standard hourly rate and the time spent on the case was reasonable. Inquiry of records of the Division of Real Estate reveals that as of July 20, 1988, searching only through the letter "H", The Vacation Shoppe has over 100 licensees affiliated with it. No information was presented as to whether these licensees were employees or independent contractors. TVS indicates it has only 5 employees. The agency did not present any evidence to indicate the actual relationship of the licensees to the corporation. No evidence was Presented as to compensation methods or arrangements, hours, working conditions, liability for tax or any other indicia of relationship. Since a real estate broker, absent a salary or draw agreement or the accomplishment of some commission-earning activity, does not normally become liable for compensation to a licensee whose license is listed with it, it is clear that the licensees are not employees.
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.
