Findings Of Fact Respondent, James K. Hart (Hart), was at all times material hereto licensed as a real estate broker-salesman in the State of Florida, having been issued license number 0302051. On November 26, 1986, in the Criminal Court of Washington County, Tennessee, Hart entered a voluntary plea of nolo contendere to the felony charge of attempt to commit a felony (conspiracy to distribute cocaine in excess of 30 grams). On October 6, 1987, the court found Hart guilty, and he was sentenced to three years confinement and ordered to pay a fine of $75,000. Hart did not notify petitioner within thirty days of having pled nolo contendere or having been convicted of such felony. Hart served 10 months and 27 days of his sentence in the county jail at Johnson City, Tennessee, and then, on August 27, 1988, was released to serve a two-year term of probation. Currently, Hart is serving his two-year term of probation, and reporting to authorities in Broward County, Florida. Hart is currently 50 years of age, and employed to sell kitchen cabinets. From such employment he grosses an income of $25,000 a year. At hearing, Hart offered proof that, as a consequence of his conviction, he owed approximately $220,000 to members of his family and his attorneys. According to Hart, absent the ability to practice as a real estate salesman, his chosen profession, he has no expectations of paying such debts or of providing for his retirement years. While the offense for which he was convicted involved a conspiracy to distribute cocaine, he avers that he has never used drugs, but committed the offense solely because of greed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the real estate broker-salesman's license of respondent, James K. Hart, be revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June 1989. WILLIAM J. KENDRICK Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not relevant. Addressed in paragraph 2. Addressed in paragraph 4. COPIES FURNISHED: STEVEN W. JOHNSON, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801 KENNETH G. STEVENS, ESQUIRE 412 NE 4TH STREET FORT LAUDERDALE, FLORIDA 33301 DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801
Findings Of Fact The Respondent Ben D. Harrell, is registered with the Real Estate Commission as a real estate salesman. Copies of the Administrative Complaint filed by the Commission were forwarded to the Respondent at the address he most recently provided the Commission. In addition, a copy of the complaint was hand served upon the Respondent. A copy of the Notice scheduling the final hearing was also forwarded to the Respondent at his last listed address. A Grand Jury for the United States District Court, Middle District of Florida, Jacksonville District, returned an indictment against the Respondent, charging him with knowingly making materially false statements in a Satisfaction of Mortgage submitted to the Federal Land Bank in violation of Title 18 United States Code, Section 1014. The Respondent was convicted of the charges and on May 13, 1977, he was adjudicated guilty and sentenced to serve two years in federal penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of five years. The crime of which the Respondent was convicted involves dishonest dealing in connection with a real estate transaction, and is a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered finding the Respondent guilty of the charges alleged in the Administrative Complaint and suspending the Respondent's registration as a real estate salesman for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of July, 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Ben David Harrell 900 S.W. 15th Terrace Fort Lauderdale, Florida 33312 ================================================================= AGENCY MEMORANDUM ================================================================= November 8, 1978 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney RE: PD 3278 FREC vs. Ben David Harrell DOAH Case No. 78-835 Enclosed* is a copy of a Final Order suspending the above named Defendant's registration for a period of two years. Please mark your records accordingly. Mark A. Grimes MAG:lam * NOTE: The Agency Final Order is not available at the Division and therefore not a part of this ACCESS document.
The Issue Should Petitioner impose discipline against the licenses held by Respondent as a real estate broker, licenses numbers 3000807, 3000808, and 300092222, and as a real estate instructor, license number 32195, for alleged violations of Section 475.25(1)(f), (n) and (p), Florida Statutes (2004)?
Findings Of Fact Facts Alleged in the Amended Administrative Complaint Uncontested by the Answer: Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165 and Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent is and was at all times material hereto a licensed Florida real estate broker, issued license numbers 3000807, 3000808, and 3092222, in accordance with Chapter 475 of the Florida Statutes. The last licenses issued were as a broker at AAA Realty of Florida Comm. Real Estate Properties/Investments, Inc., 132 South Atlantic Avenue, Daytona Beach, Florida 32118, and at AAA Realty of Florida International Inc., 132 South Atlantic Avenue, Daytona Beach, Florida 32118. Respondent is a licensed real estate instructor issued license number 32195 with AAA College of Real Estate. Additional Facts: More specifically concerning licenses issued to Respondent as a real estate broker, from January 1, 2005 through March 13, 2006, Respondent was a broker doing business as AAA Realty of Florida License No. BK3000807, a brokerage sole proprietorship located at 132 South Atlantic Avenue, Daytona Beach, Florida 32118. From January 1, 2005 to March 13, 2006, Respondent was a broker, License No. BK3092222, affiliated with AAA Realty of Florida International, Inc., License No. CQ0000000, a brokerage corporation located at 132 South Atlantic Avenue, Daytona Beach, Florida 32118. License No. BK3000808 expired March 31, 2004. In State of Florida vs. Fadel Fawzi Elbadramany, in the Circuit Court, Seventh Judicial Circuit, in and for Volusia County, Division 41, Case No. 2001-36519CFAES, the defendant, Respondent here, was tried and found guilty by a jury of grand theft of over $20,000, an offense recognized in Subsections 812.014(1) and (2) (b), Florida Statutes. On February 11, 2005, an order of judgment was entered by Circuit Judge R. Michael Hutcheson adjudicating the defendant in that cause, Respondent, in the present case, guilty of grand theft. On that same date an order of sentence was entered against the defendant/Respondent, by which he was committed to the Department of Corrections to be imprisoned for a term of 15 years, with credit for 105 days of time served while incarcerated before the imposition of this sentence. By separate order the defendant/Respondent was required to pay certain charges, costs and fees. That order was entered on February 11, 2005. In Fadel Elbadramany, Appellant, vs. State of Florida, Appellee, in the District Court of Appeal of the State of Florida, Fifth District, July term 2006, Case No. 5D05-754 decision filed August 8, 2006, the court entered a per curium affirmance. On September 27, 2006, that court ordered "that appellant's motion for rehearing, rehearing En Banc and request to issue a written opinion filed August 22, 2006 and Appellant's Supplemental to Request to Issue a Written Opinion, filed September 18, 2006 are denied." Respondent is presently confined in Washington Correctional Institution where the final hearing was held. He is inmate number V21541. His tentative release date from his imprisonment is October 26, 2019. His confinement is in relation to the grand theft offense.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered finding Respondent in violation of Section 475.25(1)(f) and (n), Florida Statutes (2004), that Respondent did not violate Section 475.25(1)(p) Florida Statutes (2004), and revoking the real estate broker licenses and real estate instructor license held by Respondent. DONE AND ENTERED this 20th day of December, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 20th day of December, 2006.
Findings Of Fact By application filed with respondent, Division of Real Estate (Division), on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. In response to question six an the application, petitioner acknowledged that he had been arrested in August 1984 for possession of marijuana, a felony, and burglary and sexual misconduct, both misdemeanors, and ultimately pled guilty to the felony charge of possession of marijuana and the misdemeanor charge of sexual misconduct. After reviewing the application, and securing petitioner's record of arrests, respondent issued proposed agency action in the form of a letter on October 3, 1988, denying the request on the ground petitioner was not "honest, truthful, trustworthy, and of good character" and did not "have a good reputation for fair dealing." The denial prompted petitioner to request a formal hearing. Malloy, who is twenty-eight years old, graduated from Spring Hill College in Mobile, Alabama in February 1983 with a degree in psychology. After graduation, he worked as a recreation director for a residential care facility for emotionally disturbed children in the Mobile area. In August 1984 he was arrested for possession of marijuana after police found marijuana plants growing in his backyard. The charge was a felony under Alabama law. A short time later, one of Malloy's neighbors lodged charges of sexual abuse against him for allegedly making improper advances on her thirteen year old son. A charge of second degree burglary, a felony, was added for Malloy allegedly unlawfully entering the house where the minor resided Upon advice of his attorney, Malloy accepted a negotiated plea offered by the state and pled guilty to the felony charge of possession of marijuana and to a reduced misdemeanor charge of sexual misconduct, and the state agreed to dismiss the burglary charge. After the plea was accepted, Malloy was placed on probation for five years. Except for these offenses, petitioner has never been charged with or convicted of any other crimes. Malloy accepted the above arrangement since he did not wish to go to trial and risk incarceration. He readily acknowledged the presence of marijuana plants in his back yard which he said were for his own consumption and that of some friends. However, he vigorously denied the sexual misconduct and related burglary charges and blamed them on the neighbor who he contended was mentally unstable and vindictive. Since Malloy's plea, he has been on supervised probation which is scheduled to end on January 1, 1990. Under the terms of his probation, Malloy must check in once a month, report his activities to a supervisor and attend counseling sessions. He is currently in the process of requesting an early termination of probation. Malloy left Alabama in early 1985 and worked briefly at a resort in Key West. In late 1985 he began employment with a satellite communications firm in St. Petersburg and was in charge of sales, credit and installations for three area stores. In that capacity, he handled the firm's money and was required to frequently deal with the public. After a brief stint as an assistant store manager with a Sarasota department store, Malloy worked two years as a teller for a Sarasota savings and loan institution where he handled large amounts of cash on a daily basis. It is noteworthy that the bank hired petitioner with the knowledge of his criminal background. Pending the outcome of this proceeding, Malloy is working as an office manager with a Sarasota air-conditioning firm. Malloy now wishes to enter the real estate profession and eventually specialize in appraising. Malloy's honesty, trustworthiness and good reputation were attested to by the branch manager of the bank where Malloy was employed and the owner of the business where he now works. Malloy was described as being honest, reliable and trustworthy. Both had the utmost confidence in entrusting Malloy with handling moneys. Indeed, all positions held by Malloy since 1985 have involved unsupervised responsibilities, the handling of cash and dealings with the public. As such, he has established rehabilitation. There was no evidence to contradict these findings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Garth Arin Malloy for licensure as a real estate salesman be GRANTED. DONE and ORDERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5666 Petitioner: 1. Covered in finding of fact 1. 2-3. Covered in finding of fact 4. 4-6. Covered in finding of fact 2. 7. Rejected as unnecessary. 8-9. Covered in finding of fact 4. 10-11. Covered in finding of fact 3 12-13. Covered in finding of fact 4. 14. Covered in finding of fact 3. 15. Covered in finding of fact 6. 16-32. Covered in finding of fact 7. 33. Rejected as unnecessary. 34. Covered in finding of fact 5. 35. Covered in finding of fact 4. 36. Rejected as being a conclusion of law. 37-38. Covered in finding of fact 7. 39. Rejected as unnecessary. COPIES FURNISHED: Edwin M. Boyer, Esquire 2055 Wood Street, Suite 220 Sarasota, Florida 34237 Manuel E. Oliver, Esquire Room 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
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.
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 The issues in this proceeding are whether Respondent violated Chapter 475, F.S., by: Being convicted of a crime involving moral turpitude. (Subsection 475.25 (1)(f), F.S.) Being confined in a federal prison; (Subsection 475.25(1)(n), F.S.) and Failing to notify the Florida Real Estate Commission in writing within 30 days of his conviction. (Subsection 475.25(1)(p), F.S.)
Findings Of Fact Daniel Reagan Lee is licensed as a real estate salesman in the State of Florida under License No. 0145478. He renewed his non-active salesman license on October 1, 1982, and two years later the license expired. It has not been renewed. (Petitioner's Exhibit #1) On July 1, 1985, in a trial by jury, in the U.S. District Court for the Middle District of Florida, Mr. Lee was found guilty of three counts of a Grand Jury criminal indictment. He was found not guilty of one count of the same indictment. (Case No. 84-95-Cr-T-15)(Petitioner's Exhibit #3) The convictions were for importation of marijuana in violation of Title 21, U.S.C., Section 952 and Title 18, U.S.C., Section 2; conspiracy to possess with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 846; and possession with intent to distribute marijuana, in violation of Title 21, U.S.C., Section 841(a)(1) and (2). (corrected version of Petitioner's Exhibit #3, filed by leave of the Hearing Officer on October 23, 1986.) On July 26, 1985, Mr. Lee was sentenced by U.S. District Judge William J. Castagna to three years of imprisonment and two years of special parole. (Petitioner's Exhibit #3.) On March 25, 1986, the Florida Real Estate Commission received a letter from Daniel Lee's mother, advising them of her son's conviction and incarceration. (Petitioner's Exhibit 5a, transcript, p. 11.) Daniel Lee is now and has been since August 1986, serving his sentences at the Federal Correctional Institution in Lexington, Kentucky. (Respondent's Answer dated July 5, 1986, Petitioner's Exhibit #5a.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered finding Daniel Lee guilty of violations of Subsections 475.25(1)(f), (n) and (p), F.S., and revoking his non- current inactive real estate salesman's license. DONE and RECOMMENDED this 17th day of December, 1986, in Tallahassee, Florida. MARY CLARK 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 17th day of November, 1986. COPIES FURNISHED: Susan Hartmann, Esquire Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Daniel R. Lee, 04314-018 Antaeus Unit Post Office Box 2000 Lexington, Kentucky 40512 Daniel R. Lee c/o Elizabeth C. Lee 1025 Hillsboro Avenue Ft. Myers, Florida 33905 Harold Huff, Executive Director Division of Real Estate Department of Professional Regulation 400 W. Robinson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 N. Monroe Street Tallahassee, Florida 32301
Findings Of Fact Respondent, George Thomas Darby, at all times relevant to these proceedings, was licensed as a professional bail bondsman and limited surety agent. The Respondent was previously licensed as an ordinary-combination life, including disability agent, but such license expired on March 30, 1981. On January 7, 1982, a grand jury indictment was issued in the United States District Court for the Northern District of Florida, Panama City Criminal Division, against the Respondent, George Thomas Darby. The indictment specifically charged that the Respondent: Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other stated individuals to possess with the intent to distribute more than 1,000 pounds of the Schedule I control substance marijuana, in violation of Sections 841 and 846 of Title 21 of the United States Code. Did knowingly combine, conspire, confederate agree, and have a tacit understanding with other specified persons to import into the United States the Schedule I control substance marijuana in violation of Sections 952 and 963 of Title 21 of the United States Code. Did knowingly and intentionally import into the United States a Schedule I control substance in violation of Section 952 of Title 21 and Section 2 of Title 18 of the United States Code. Did knowingly and intentionally possess with the intent to distribute the Schedule I control substance marijuana in violation of Section 841 of Title 21 and Section 2 of Title 18 of the United States Code. On July 14, 1982, George Thomas Darby was convicted in the United States District Court for the Northern District of Florida, Panama City Criminal Division, as follows: Defendant has been convicted as charged of the offense of from on or about January, 1975, until the date of the indictment, in the Northern' District of Florida and elsewhere, knowingly combining, conspiring, and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952 and 963, as charged in Count 111(3) of the indictment. Pursuant to the above conviction, the Respondent, George Thomas Darby, was sentenced to a term of five years imprisonment and fined $15,000. The Respondent, by answer, admitted and further, at the formal hearing by stipulation, accepted as true the following facts: That you, George Thomas Darby, on or about July 14, 1982, in the United States District Court of the Northern District of Florida, in Case No. MCR 82-00203-07, were found guilty of knowingly combining, conspiring and agreeing with others to import marijuana into the United States, in violation of Title 21, U.S. Code, Sections 952, and 953, as charged in Count 111(3) of a previous grand jury indictment, Criminal Case No. MCR82-00203. The violation of either of the aforementioned titles is a felony as defined by Title 18, U.S.C. Section I(1). The Respondent has been licensed as a professional bail bondsman since October, 1976. His primary business as a bail bondsman has been in Jackson County, Florida. The Respondent has had no prior criminal convictions and no complaints or other disciplinary actions by the Department of Insurance against any license held by him from that Department. The Respondent has voluntarily ceased writing bail bonds since February of 1982, to the date of the hearing. Prior to the above-referenced conviction, the Respondent enjoyed a reputation as an honest, hardworking, and law-abiding citizen in the Jackson County area. On January 31, 1983, Clyde M. Taylor, Jr., Esquire, counsel for the Respondent in the above-referenced criminal action, filed an appellate brief in the United States Court of Appeal for the Eleventh Circuit on behalf of George Thomas Darby, seeking to reverse the July 14, 1982, district court conviction. At the time of the formal hearing, this appeal was pending.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Insurance enter a Final Order dismissing its Administrative Complaint against the Respondent, George Thomas Darby. DONE and ENTERED this 27th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Clark R. Jennings, Esquire Department of Insurance Suite 413-B, Larson Building Tallahassee, Florida 32301 Clyde M. Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301 Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 MARVIN E. CHAVIS 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 28th day of July, 1983.
The Issue An Administrative Complaint dated May 20, 1998, alleges that Respondent James Collins, violated Section 475.25(1)(m), Florida Statutes, when he falsely stated on an application for licensure that he had never pled guilty to, nor was convicted of a crime. The issue for disposition is whether that violation (obtaining a license by means of fraud, misrepresentation, or concealment) occurred, and if so, what discipline is appropriate.
Findings Of Fact James Collins has been an active real estate salesperson in Florida since July 28, 1994, having been issued license No. 0614229. On his application for licensure dated January 22, 1994, Mr. Collins answered "no" to this question no. 9: 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. In addition, he executed this affidavit statement on the application form: . . . 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. The response by Mr. Collins to question no. 9 failed to disclose that on September 18, 1978, he pled guilty to possession of not more than 5 grams of cannabis, a misdemeanor. His plea was in writing and he did not attend court. On September 21, 1978, he was adjudged guilty and sentenced to pay a fine of $495, plus costs totaling $37.75. His attorney paid the fine. The plea was the outcome of Mr. Collins' arrest for possession of controlled substance, Section 893.13, Florida Statutes, on April 21, 1978, at the Orlando International Airport. He was 28 years old at the time of arrest and 29 years old upon sentencing. At hearing, Mr. Collins' explanation of his arrest was that he and some friends were at the airport getting ready to fly to Ft. Lauderdale. The security check lady found a "little bit of marijuana," "less than a tenth of a gram of marijuana," in his carry-on bag. He was arrested and put in a holding room at the airport and did not make the flight to Ft. Lauderdale. He also explained that he was on crutches after having broken his hip playing racquetball and was taking pain medication. Mr. Collins further explained that he contacted an attorney, James Russ, a friend of the family, who wanted $10,000 to "make it go away." Mr. Collins did not have that money so he contacted another attorney, Richard Rhodes, who advised him to plead guilty. According to Mr. Collins, he remembered none of this incident until confronted by the Division of Real Estate. Then, in 1997, at the invitation of a Division staff person, Ms. Atkinson, Mr. Collins wrote a letter explaining the circumstances. His letter, dated December 16, 1997, tells a somewhat different story from that given at the hearing: . . . I was charged with possession of 1/10 of a gram of cannabis that was on the ground beside me and about 1000 other people, O.I.A. [illegible]. My attorney, James M. Russ told me just to plead guilty to possession of less than 5 grams of cannabis. It would be a lot cheaper than going to court. He told me to just forget about this and go on with your life and that is exactly what I have done. I paid a fine-no probation. I never even went to court. The only person I saw was James Russ and that is exactly what I've done until your letter came. (Petitioner's Exhibit No. 4.) . . . Except for the amount of marijuana, the police report was more consistent with Mr. Collins' letter than with his account at the hearing. That is, according to the apprehending officer, Mr. Collins fled a search of his shoe, ran to the airport main entrance and starting shaking a bag of marijuana on the sidewalk, where he was apprehended. A letter from attorney Richard Rhodes and the written plea document confirm that it was Mr. Rhodes, not James Russ, who represented Mr. Collins in the airport matter. Mr. Collins averred that he simply forgot the arrest and plea when he filled out his licensure application. In explaining the oversight he also added that he felt comfortable with his "no" answer because he had passed the FBI fingerprint check. Mr. Collins' explanations of the circumstances of his arrest and subsequent guilty plea are inconsistent and evasive. His lack of candor in these matters contributes to the non- credibility of his excuse that he simply forgot the incident altogether when he was filling out his licensure application. In recent years Mr. Collins has been active in his church and his daughter's school. She is 16 years old and he is her sole support, as her mother, his wife, died 7 years ago. In the 4 1/2 years that he has been licensed there have been no other complaints related to Mr. Collins' practice of real estate.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Florida Real Estate Commission enter its Final Order finding that Respondent violated Section 475.25(1)(m), Florida Statutes, and revoking his real estate license. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 30th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Frederick Wilsen, Jr., Esquire Gillis and Wilsen 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Center Tallahassee, Florida 32399
Findings Of Fact The Respondent, Leonard M. Wojnar, is a licensed real estate salesman, having been issued license number 0372634. The Respondent was a licensed real estate broker in the State of Michigan from approximately 1975 until his license was revoked on or about July 2, 1982. In the fall of 1980, a Complaint was filed in Michigan against the Respondent. The Respondent appeared at a hearing in Michigan, after which this case was dismissed. On or about February 3, 1981, the Department of Licensing and Regulation in Michigan contacted the Respondent by letter, notifying him of the Department's involvement with the complaint against him. This letter was received by the Respondent. By letter dated February 9, 1981, to the Michigan Department of Licensing and Regulation, the Respondent replied to the February 3, 1981 letter. On or about May 12, 1981, the Michigan Department of Licensing and Regulation issued a formal Complaint against the Respondent, and served it on him on approximately May 13, 1981. There is no evidence to demonstrate that the Respondent received service of this Complaint, but based upon the earlier correspondence between the Michigan Department of Licensing and Regulation and the Respondent, the Respondent was on notice of a proceeding pending against him. On May 22, 1981, the Respondent completed his application for licensure in Florida. Thereafter, with the assistance of counsel in Michigan, the Respondent attended hearings and proceedings in the Michigan action against his real estate license. The Respondent's Michigan license was revoked on or about July 2, 1982. When the Respondent applied for his Florida license, he failed to disclose that a proceeding was pending against his license in Michigan, and he answered Question 15a on the Florida application in the negative. This question asks if any proceeding is pending in any state affecting any license to practice a regulated profession. The Respondent contends that the revocation of his license by the Michigan authorities is invalid, and that legal proceedings are pending in Michigan to obtain restoration of his license there. He also contends that he was not aware of any proceeding pending against him when he answered Question 15a on the Florida application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0372642 held by Leonard M. Wojnar be REVOKED. THIS RECOMMENDED ORDER entered this the 21st day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 21st day of July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Steven Warm, Esquire 101 North Federal Highway Boca Raton, Florida 33432 William M. Furlow, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square Bldg. 130 North Monroe Street Tallahassee, Florida 32301
