The Issue Whether the registration of the Respondent, Betty Lou Haber, license #0034988 should be revoked or suspended, or whether Respondent should be otherwise disciplined.
Findings Of Fact An administrative complaint was filed by the Petitioner, Florida Real Estate Commission, on September 29, 1978, seeking to revoke or suspend or otherwise discipline Respondent Haber. The administrative complaint charged that the licensee was presently confined in a state prison. Respondent requested an administrative hearing. A stipulation was entered by Barry A. Cohen, Esquire, the attorney for Respondent, confirming that Respondent Haber was and had been continuously confined in the Broward Correctional Institution since August 16, 1977. Said stipulation is attached hereto and made a part hereof. Prior to the hearing a letter was received by the Petitioner, Florida Real Estate Commission, advising the Petitioner that Respondent did not intend to proceed to hearing and requesting Petitioner to close the matter. The Division of Administrative Hearings was not so notified. A copy of said letter is attached hereto and made a part hereof. Petitioner presented the aforesaid stipulation and aforesaid letter and a witness at the hearing. The witness, Martha Iglesias, Inmate Records Supervisor for the Broward Correctional Institution, testified that Respondent Haber was an inmate of said institution, having been found guilty by a jury of First Degree Murder in Case #75-518 in the Circuit Court in and for Hillsborough County, Florida, and sentenced to be imprisoned in the State Penitentiary for a period of her natural life.
Recommendation Revoke the non-active salesman license held by the Respondent, Betty Lou Haber. DONE and ORDERED this 18TH day of April, 1979, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Manuel E. Oliver, Esquire 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Barry A. Cohen, Esquire 100 Twiggs Street, Suite 4000 Tampa, Florida 33602 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Respondent took the examination for real estate salesman and was licensed December 16, 1982. His license was last renewed in December 1984 (exhibit 1 and Price testimony). At all times relevant hereto he was licensed by Respondent as a real estate salesman. By judgment dated-May 10, 1985, Buford D. Price was convicted of murder in the third degree, possession of cocaine, and possession of narcotic paraphernalia. Respondent was sentenced to seven (7) years imprisonment on the murder charge, imposition of sentence was withheld on the narcotic charges and he was placed on probation for five (5) years to run consecutively to the imprisonment. Respondent expects to be released from prison by June 1988 although his current release date is June 8, 1989. For the past three months he has been working outside prison on the highways and in communities. Prior to his arrest and incarceration Respondent worked principally for property management companies and Pulte Homes. As owners of the property leased or sold their salesmen do not need a real estate license to sell or lease such property only.
The Issue The issue is whether Florida Administrative Code Rule 69B-211.042(6), (8), and (14) is an invalid exercise of delegated legislative authority within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002).
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2002). On April 3, 2003, Petitioner applied for a license as a resident company employee property and casualty adjuster (resident adjuster license). Petitioner truthfully answered all questions on the application, including those questions pertaining to Petitioner's criminal history and guilty plea to a felony charge in Georgia. On September 25, 2003, Respondent issued a Notice of Denial of Petitioner's license application. Respondent based the denial, in relevant part, on the grounds that Florida Administrative Code Rule 69B-211.042(6) and (14) prohibit Respondent from granting the application while Petitioner is on probation or in a pre-trial intervention program; and that Florida Administrative Code Rule 69B-211.042(8) requires Petitioner to wait five years after the plea dated May 14, 2002, before applying for a license. On a date not disclosed in the record, Respondent issued a Second Amended Notice of Denial (the Amended Notice of Denial). The record does not disclose a first amended notice of denial. The Amended Notice of Denial, in relevant part, deletes grounds for the proposed denial that are not relevant to this Final Order. On May 14, 2002, Petitioner pled guilty to a single felony charge of possession of cocaine. A Georgia court sentenced Petitioner under Georgia's First Offender Act. If Petitioner successfully completes probation, Georgia will dismiss the felony charge. If Petitioner does not successfully complete probation, the Georgia court may revoke Petitioner's probation, adjudicate Petitioner guilty as charged, and sentence Petitioner to the maximum sentence authorized under Georgia law. Petitioner challenges the following provisions in Florida Administrative Code Rule 69B-211.042: (6) Probation. The Department shall not grant licensure to any person who at the time of application or at any time during the pendency of the application is serving a probationary term on any felony crime, or any misdemeanor crime, except for those crimes specified in Chapter 316, F.S., which are not punishable by imprisonment. The Department shall not substantively consider an application until the applicant has successfully completed his or her probationary term. * * * (8) Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date. (c) Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date. * * * (14) Pre-Trial Intervention: Specific Policy. (b) The Department will not grant licensure to any person who at time of application is participating in a pre-trial intervention program. The Department finds it necessary to the public welfare to wait until the pre- trial intervention is successfully completed before licensure will be considered. Petitioner challenges the foregoing provisions in Florida Administrative Code Rule 69B-211.042 on the grounds that each provision violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). Petitioner alleges that each challenged provision of the rule, respectively, exceeds the grant of rulemaking authority; enlarges, modifies, or contravenes the specific provisions of law implemented; or is arbitrary or capricious within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). The challenged provisions of the rule may reasonably be construed in a manner that preserves the validity of the rule. The express terms of the rule do not mandate an interpretation that violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). However, Respondent interprets the challenged provisions of the rule in a manner that, if accepted, would violate Subsections 120.52(8)(b) and (c), Florida Statutes (2002). The enabling legislation for Florida Administrative Code Rule 69B-211.042 is Subsection 626.207(1), Florida Statutes (2002). Subsection 626.207(1), Florida Statutes (2002), authorizes Respondent to adopt rules establishing specific waiting periods that Respondent must apply after Respondent denies, suspends, or revokes Petitioner's license pursuant to specifically enumerated Florida statutes. In relevant part, Subsection 626.207(1), Florida Statutes (2002), provides that Respondent: . . . shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation. . . . (emphasis supplied) Subsection 626.207(1), Florida Statutes (2002), prescribes a statutory prerequisite to the imposition of any waiting period pursuant to Florida Administrative Code Rule 69B-211.042. The statutory prerequisite is that Respondent must first deny, suspend, or revoke an existing license based on statutory provisions enumerated in the enabling legislation; enumerated provisions that are independent of any waiting periods. Thereafter, Respondent may impose relevant waiting periods to any application that follows Respondent's denial, suspension, or revocation of a license. The express terms of Florida Administrative Code Rule 69B-211.042 do not mandate the imposition of waiting periods without first satisfying the statutory prerequisite prescribed in the enabling legislation. The challenged provisions of the rule may reasonably be construed as authorizing the imposition of waiting periods following Respondent's denial, suspension, or revocation of an existing license. Respondent interprets the challenged provisions of the rule as authorizing Respondent to impose waiting periods without satisfying the statutory prerequisite in the enabling legislation. The waiting period that Respondent proposes to impose against Petitioner does not follow Respondent's denial, suspension, or revocation of a license within the meaning of Subsection 626.207(1), Florida Statutes (2002). When Georgia authorities arrested Petitioner for possession of cocaine on November 4, 2001, Petitioner held a Florida nonresident company all-lines adjuster license pursuant to license number A082918 (a nonresident adjuster license). Petitioner voluntarily cancelled the nonresident adjuster license on October 21, 2002. Respondent did not deny an application for renewal of the nonresident adjuster license. Nor did Respondent suspend or revoke Petitioner's nonresident adjuster license. The application for a resident adjuster license at issue in this proceeding indicates that no administrative action was ever taken against Petitioner's nonresident adjuster license. Respondent stipulated that Petitioner answered all questions on the application truthfully. The Florida licensure file that Respondent maintains shows that Respondent took no administrative action against Petitioner's nonresident adjuster license. Respondent proposes to impose a waiting period against Petitioner that that does not follow denial, suspension, or revocation of either Petitioner's previous nonresident adjuster license or the resident adjuster license that Petitioner seeks in this proceeding. The second page of the application that Petitioner submitted states that Respondent will not consider the application while Petitioner is under probation or in a pre- trial intervention program. In relevant part, the second page of the application provides: NOTE: IF YOU ARE CURRENTLY ON PROBATION OR PARTICIPATING IN A PRE-TRIAL INTERVENTION PROGRAM, YOU MAY WANT TO WAIT TO FILE YOUR APPLICATION WITH THE DEPARTMENT UNTIL YOUR PROBATION OR PRE-TRIAL PROGRAM HAS TERMINATED. (For other than minor traffic violations, the rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term or participating in a pre- trial intervention program. ) (emphasis not supplied) After receiving the application for a resident adjuster license, Respondent issued a letter dated April 7, 2003, stating Respondent's intent to deny the application. In relevant part, the letter stated: [W]e are in receipt of the certified documents, however, a review of the documents indicate[s] that you are still on probation. The rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term. Please write and let us know if we need to close or withdraw your application. The express terms of Subsection 626.207(1), Florida Statutes (2002), require an interpretation of Florida Administrative Code Rule 69B-211.042 that limits the imposition of relevant waiting periods to periods that follow Respondent's denial, suspension, or revocation of a license. The waiting periods begin on "trigger dates" defined in Florida Administrative Code Rule 69B-211.041(11). The express terms of the enabling legislation do not authorize the imposition of waiting periods unless the waiting periods follow a denial, suspension, or revocation of a license by Respondent in accordance with Florida law. If Respondent were to deny Petitioner's application for a resident adjuster license on the grounds that Petitioner violated one of the statutes enumerated in the enabling legislation, Subsection 626.207(1), Florida Statutes (2002), would authorize Respondent to apply the challenged provisions of Florida Administrative Code Rule 69B-211.042 to prevent Petitioner from applying for a license before the expiration of the applicable waiting period. Similarly, if Respondent were to have suspended or revoked Petitioner's nonresident adjuster license, Subsection 626.207(1), Florida Statutes (2002), would have authorized Respondent to apply the relevant waiting period to prevent Petitioner from applying for another nonresident adjuster license; or arguably to prevent Petitioner from applying for the resident adjuster license at issue in this proceeding.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Sergio Ramon Garcia (Garcia) was licensed by the State of Florida as a life and variable annuity contracts agent, life agent, life and health agent, general lines agent, health insurance agent, and legal expense insurance agent, having been issued license number 266253905. On the evening of July 20, 1991, while leaving his insurance office in Dade County, Florida, Mr. Garcia was the victim of a violent crime. Two individuals with firearms attempted to rob Mr. Garcia. He was shot five times. As a result of his injuries, Mr. Garcia was in surgery for several hours, in intensive care for two weeks, and in the hospital for approximately two months. He was paralyzed from the waist down. Mr. Garcia received rehabilitation for a considerable amount of time. At first, there was no expectation that he was going to walk again. Mr. Garcia was confined to a wheelchair. Through physical therapy, he progressed from the wheelchair to a walker, to crutches, and to a cane. Now, Mr. Garcia is able to walk without any assistance. During his rehabilitation period, Mr. Garcia used a bicycle for therapy that he had purchased for his personal pleasure years before the shooting. His physical therapist had recommended using the bicycle to exercise his legs. Mr. Garcia rode the bicycle every morning and every evening. He became very sentimental toward the bicycle and referred to the bicycle as his “friend.” The bicycle had distinct features. It was specially modified to accommodate his therapy needs (a specially wide seat for his hip problems) and was white, including the handle bars. Mr. Garcia has undergone 12 operations and more are expected. He has screws in his hips, and the screws will have to be replaced through surgery. Mr. Garcia experiences pain daily and continues to take medication for pain. Furthermore, Mr. Garcia continues to attend physical therapy. After the shooting, Mr. Garcia’s then business partner purchased a handgun, a .22 caliber Derringer, and gave it to Mr. Garcia for protection. The handgun was a small weapon which would fit within the palm of Mr. Garcia's hand. Mr. Garcia obtained a license to carry a concealed weapon. Subsequently, Mr. Garcia and his wife decided to move to Broward County, Florida. Mr. Garcia did not receive the renewal for his concealed weapons license when they moved; notwithstanding, approximately three weeks prior to the incident, Mr. Garcia renewed his concealed weapons license. It is inferred and a finding is made that, at the time of the incident, Mr. Garcia had renewed his concealed weapons license, and the license was valid.2 In January 1996, Mr. Garcia’s bicycle was stolen. The theft was reported to the proper law enforcement agency which requested the bicycle's serial number; however, the Garcias were unable to provide the serial number to the law enforcement agency. On a cold morning on or about February 21, 1996, after driving his children to school, Mr. Garcia observed a male riding, what Mr. Garcia determined to be, his bicycle. He drove alongside the male and tried to get the male to stop, but to no avail. Finally, Mr. Garcia pulled his vehicle in front of the male and stopped, forcing the male to stop. The male got off the bicycle and reached into his jacket. Mr. Garcia had his handgun in the pocket of his pants. He believed that his concealed weapons license was valid.3 Believing that the male was reaching for a handgun, Mr. Garcia became fearful for his life. Mr. Garcia reached into his pocket and pulled out his own handgun. However, the handgun, having a hair-trigger, accidentally discharged while he was pulling it from his pocket. Mr. Garcia did not point the handgun at the male. The projectile from the handgun hit the ground. The male got back on the bicycle and rode away. Not being able to run after the male because of his physical condition, Mr. Garcia returned to his vehicle, placed the handgun under the seat of his vehicle, and drove after the male. Mr. Garcia saw the male talking with a traffic assistance officer and stopped. Mr. Garcia approached them, explained that the bicycle belonged to him and demanded the bicycle from the male. Mr. Garcia put the bicycle in his car and took the bicycle home. An investigation by the local law enforcement agency ensued. As part of the investigation, Mr. Garcia was requested to provide the serial number for the bicycle. He was unable to provide a serial number and had no documents showing a serial number. However, Mr. Garcia did provide photographs of his bicycle and a receipt, identifying the same type of bicycle. On or about February 21, 1996, an information was filed against Mr. Garcia in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida, Case No. 96-5453CF. Mr. Garcia was charged with one count of aggravated assault with a firearm, which is a felony, and one count of carrying a concealed weapon, which is also a felony. On or about March 25, 1996, Mr. Garcia was arrested and charged with aggravated assault and carrying a concealed weapon. Mr. Garcia obtained counsel who strongly advised him to plead nolo contendere to the charges. His counsel advised him that, even though the prosecution’s case was very weak, a jury was unpredictable,4 and, therefore, an acquittal could not be guaranteed. Further, Mr. Garcia’s counsel advised him that, if he was convicted, he could be sentenced to a mandatory three-year prison sentence. In return for the plea of nolo contendere, the State Attorney's office waived the primary offense which carried a mandatory minimum three-year sentence. Mr. Garcia’s wife agreed with his counsel and recommended and encouraged her husband to plead nolo contendere to the charges. She did not want to face the possibility of her husband being convicted of the charges and going to prison. On or about July 22, 1996, Mr. Garcia entered a plea of nolo contendere to both felonies. The Circuit Judge withheld adjudication and sentenced Mr. Garcia to one year of community service and one year of probation for both felonies. Taking the initiative, Mr. Garcia voluntarily notified the Department of Insurance (Department) of the criminal charges against him, the nolo contendere plea, and the sentence imposed. At the hearing, neither the male who was riding the bicycle nor any alleged eye-witnesses testified. A finding is made that Mr. Garcia was in fear for his life and was defending himself when he pulled his handgun from the pocket of his pants. Since the incident on February 21, 1996, the bicycle has remained in Mr. Garcia’s possession. No claim for the bicycle has been made by the male who was riding it that day. It is inferred and a finding is made that Mr. Garcia is the owner of the bicycle. Mr. Garcia and his wife are partners in the insurance business. Mrs. Garcia is a licensed insurance agent by the Department. They have over 5,000 clients. Mr. Garcia and his wife employ over 30 people. Their workforce includes individuals who are in work release programs, and the Garcias attempt to assist them in getting their lives back together. The Vice President of the Dade County Board of Specialty Agencies testified as a character witness for Mr. Garcia. In the Vice President’s opinion, Mr. Garcia is, among other things, a very dedicated, conscientious, and responsible person. Mr. Garcia has been licensed since 1985. The Department has taken no prior disciplinary action against Mr. Garcia.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance and Treasurer issue a final order suspending the license of Sergio Ramon Garcia for one month. DONE AND ENTERED this 15th day of September, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1997.
Findings Of Fact Petitioner Donald Greig Shephard, Jr., is a 35-year-old Minnesotan who moved to Florida in May of 1979. He is a businessman who has been married approximately five years. He owns a home in Spring Hill, Florida. He received the bachelor's degree in business administration from the University of Minnesota in 1970. In the mid-70s, he started his own retail business in Minnesota, Phoenix Sound and Video. At this time, he was a regular user of cocaine and, over a period of six months, sold the drug in one-gram quantities as a means of paying for his own habit. When the authorities apprehended one of the persons to whom petitioner had sold cocaine, he identified petitioner as the source of the drug and petitioner was eventually convicted, on a plea of guilty to count one of a three-count indictment charging unlawful distribution of cocaine, in July of 1978. "On January 4, 1979, the Honorable Miles W. Lord, U.S. District Court Judge, District of Minnesota, committed [petitioner] to the custody of the Attorney General for imprisonment for a term of three years; on the condition that [he] be confined in jail type or treatment institution for a period of six months, the execution of the remainder of the sentence of imprisonment suspended and [his] being placed on probation for a period of two and one-half years." Joint Exhibit No. 1. Question No. 6 on the form application petitioner furnished respondent asked: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal vio- lations), without regard to whether convicted, sentenced, pardoned or paroled? To this petitioner answered: "Yes." Question No. 6 further directed, "If yes, state details including the outcome in full". In response to that, petitioner stated: Possession of a controled [sic] substance (cocaine) 1.5 gram, 3 year probation in Minnesota, July 1978 ending Oct. 1981[.] As a result of his conviction, petitioner was incarcerated at the Ramsey County Workhouse in St. Paul, Minnesota. On the second or third day of his incarceration, he entered a drug rehabilitation program. Less than 90 days later he was released. He has not had a drug problem since. Toward the end of his incarceration, he helped counsel other people with drug problems. In retrospect, he believes it was probably best that he was apprehended and that he had an opportunity to overcome his drug dependency. He has applied for clemency. His only previous arrests were for traffic offenses, and he has not been arrested since. On October 16, 1981, his probation terminated. In addition to Phoenix Sound and Video, Mr. Shephard has owned part or all of three other retail businesses, and has operated still others. Sherwood Commercial Brokers was his most recent employer. He left off working for them in January of 1982 because he had obtained no real estate salesman's license at that time, and has been unemployed since. Respondent's proposed findings of fact and conclusions of law have been considered in preparation of the foregoing findings of fact and the proposed findings have been adopted to the extent they were relevant and supported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent grant petitioner's application for licensure as a real estate salesman. DONE AND ENTERED this 19th day of April, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 April, 1982. COPIES FURNISHED: D. Greig Shephard, Jr. 982 Deltona Boulevard Spring Hill, Florida 33526 Jeffrey A. Miller, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate Post Office Box 1900 Orlando, Florida 32802 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, William James Barbour, is a licensed real estate salesperson in the State of Florida, having been issued license number 0631568. On September 28, 1995, Respondent filed an application (dated September 22, 1995) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty 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, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent responded to the question by checking the box marked "Yes," and attached documents relating to his arrest on June 17, 1992, and conviction on March 1, 1993, for the offense of driving under the influence. The documents further revealed that Respondent's driving privilege was revoked by the court for a six-month period (nunc pro tunc to June 17, 1992), and that by August 9, 1992, he had successfully completed the Broward County Court Alcohol and Substance Abuse Program. Respondent's driving privileges were restored February 25, 1993. No other offenses were disclosed on the application. The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department discovered that on March 4, 1993, in the County Court, Dade County, Florida, Respondent was arraigned on a charge of simple battery (date of occurrence January 9, 1993), a first degree misdemeanor, proscribed by Section 784.03, Florida Statutes. Respondent entered a plea of not guilty; however, on March 30, 1993, the court, following hearing, found Respondent guilty of the charge, but withheld adjudication. Respondent was subsequently ordered to pay $2,536 in restitution, $105.00 in court costs, and participate in a pre-trial diversion anger control class. After receipt of the foregoing information, the Department apprised Respondent of its discovery. Respondent addressed the Department's concerns by letter of September 5, 1997, as follows: After our conversation on this morning of 9-5-97 I am aware that I filled out the application for Real Estate incorrectly. At the time, my understanding to the question about an arrest or convictions on the application, was for a felony. I have had arrest but all of the 3 I've had were misdemeanors. One was for a DUI. In June of 1992 where I was found guilty and lost my Drivers License for 6 months & had to attend a counter measures class. I completed all required classes and now hold a safe Driver's Lic. I had two other arrest[s]. Both were for battery. I had to attend an advocate program for violence. I completed all classes. I believe that ajudication [sic] was witheld [sic] for both charges. I am sorry for any inconvenience that I have caused over this matter, and hope that I can continue to keep my Real Estate License. Thereafter, on November 20, 1997, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid finding of guilty to the crime of battery, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against his license. According to the complaint, the disciplinary action sought . . . 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 one or all of the above penalties. 1 At hearing, Respondent offered the following explanation for his response to item 9 of the application or, stated differently, for his failure to disclose the charge of battery for which he had been found guilty (albeit adjudication being withheld): . . . Your Honor, at the time that I had filled out the application -- okay, right before that I had been arrested for a DUI. That's one thing that I did list in the application. But at the time of the application, you know, the question had stated: If you had ever been arrested -- anyhow I answered yes to the question. But when it said to list the details, my first understanding of the question was that it was for felonies only, but the charges that I had -- I had a charge for a fight, actually two times I was arrested for fighting. And I didn't know what the outcome of the charge was to be able to list it, you know, in detail. So when I answered the question I answered yes, you know, believing that the Real Estate Commission would, you know, because it said at the end of the question your answer would be checked with state, local, and federal officials, and I didn't know the detailed charges that I was -- that were placed upon me. So I just answered the question yes figuring that they would find what the charges were. I was not trying to hide anything from the Real Estate Commission. I had great feeling that they were going to find out everything that I had been arrested for. (Transcript, at pages 4 and 5.) And, on cross-examination, Respondent responded regarding his response to the application question, as follows: Q. And in attaching materials you listed a conviction for driving under the influence charge? A. Right. Because at the time I had understood that the question was for a felony, but even still I answered it yes, because, you know, I knew the other ones were like misdemeanors or something, but I didn't know what degree or any of that, you know, so I answered yes. And the only thing I had attached was the DUI because that's the only thing that I even had paperwork on. (Transcript, at pages 7 and 8.) Apart from the foregoing incidents, Respondent has had no other involvement with the criminal justice system. Here, Respondent's explanation for his failure to disclose the battery charge on his application is wanting in substance, and does not detract from the conclusion that the application he submitted was false. In so concluding, it is observed that Respondent's answer to the question posed by the application (given the information requested and his attestation) purported to divulge every offense for which he had "been convicted . . . , found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Under such circumstances, it cannot be subject to serious debate that, when the application was submitted, Respondent knew he provided false or misleading information regarding his criminal record. In concluding that Respondent knowingly and intentionally provided false or misleading information on his application, his explanation that he lacked paper work on the battery arrest and assumed the Department would uncover the charge upon a background check, has not been overlooked; however, such explanation does not detract from the conclusion reached. Indeed, it is inherently improbable, given the proximity in time of the offenses (Respondent was convicted of DUI on March 1, 1993, and arraigned on the battery charge on March 4, 1993), that Respondent would be able to relate the particulars of the DUI conviction on his application, but not one iota of information regarding the battery charge. Rather, Respondent's failure to even mention the battery charge on his application renders his claim of reliance on the Department's investigation to uncover it ring hollow.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes, as alleged in the Administrative Complaint. It is further RECOMMENDED that for such violation, the Final Order revoke Respondent's license. DONE AND ENTERED this 15th day of September, 1998, 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1998.
