The Issue Whether or not the Respondent, William J. Windsor, should have his real estate license no. 0158593 revoked or suspended, or otherwise subject to discipline, for the answers given to question six in the application of the Respondent, William J. Windsor, for registration as a real estate salesman filed with the Petitioner, Florida Real Estate Commission, which answer allegedly caused the Respondent, William J. Windsor, to obtain his registration by means of fraud, misrepresentation and concealment, in violation of 475.25(2), F.S.; and further for allegedly failing to fully and accurately answer inquires pertinent to his qualifications of honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing as propounded, and is required by 475.17 and 475.18, F.S. and would therefore be guilty of violations of 475.25(1)(d), F.S. Whether or not the Respondent, William J. Windsor, should have his real estate license no. 0158593 revoked or suspended, or otherwise subject to discipline, for the answers given to question 15(a) in the application of the Respondent, William J. Windsor, for registration as a real estate salesman filed with the Petitioner, Florida Real Estate Commission, which answer allegedly caused the Respondent, William J. Windsor, to obtain his registration by means of fraud, misrepresentation and concealment, in violation of 475.25(2), F.S.; and further for allegedly failing to fully and accurately answer inquires pertinent to his qualifications of honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing as propounded, and is required by and 475.18, F.S. and would therefore be guilty of violations of 475.25(1)(d) , F.S.
Findings Of Fact The Respondent, William J. Windsor, is now and at all times material to the complaint was a registered real estate salesman with the Florida Real Estate Commission and is and was so operating and registered in the employ of Watson Corporation of Jacksonville, 6206 Atlantic Boulevard, Jacksonville Florida. The application of the Respondent, William J. Windsor, for registration as a real estate salesman was subscribed and sworn to on January 14, 1976, and filed with the Florida Real Estate Commission on January 15, 1976. The Florida Real Estate Commission approved the application for William J. Windsor to become a real estate salesman on February 3, 1976. The application for registration as a real estate salesman contained within it a question no. 6 which provides as follows: "6. 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 offences (but not parking, speeding, inspection or signal violations), without regard to whether convicted, sentenced, pardoned or paroled?" The Respondent, William J. Windsor, answered this question no.6 in the negative by placing the word "no" in the space provided. At the time of the execution of this application, the Respondent, William J. Windsor, knew or should have known that his answer to question six was false and untrue since he had failed to disclose and explain certain charges and arrests. The first matter was an arrest on September 11, 1973, by the Sheriff's office of St. Johns County, Florida under dockets no. 73-626, 73-626A and 73- 626B, three charges of the offense of "issuing a worthless check". The Respondent, William J. Windsor, also failed to reveal an arrest of October l8, 1973, by the Sheriff's office, St. Johns County, Florida, case no. 121992, on a charge of "contempt of court". The Respondent, William J. Windsor, did not reveal an arrest on October 19, 1973, by the Sheriff's Office, Polk County, Florida, on charges of "embezzlement-misapplication of funds, making false reports and furnishing false statements". The Respondent, William J. Windsor, failed to reveal in his answer to question six, that an order was entered which withheld the adjudication of guilt and placed the Respondent, William J. Windsor, on probation for a period of five (5) years', and an order of restitution after he had entered a plea of nolle contendre to the offense of misapplication of funds (five counts), case no. CF-73-2357, Circuit Court, Florida, May 1, 1974, in the Circuit Court of the Tenth Judicial Circuit in and for Polk County. This plea was entered as an agent, officer, an employee of Mar-Bil Enterprises, Inc. The probation that was received was modified by orders of the committing court and a copy of those orders, whose contents are admitted as fact, may be found as Petitioner's Exhibits #1 & #2. In the subject application for registration as a real estate salesman, William J. Windsor, the Respondent, answered a question no. 15(a) which question provided as follows: "15(a). Has any license, registration, or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, procession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?" The Respondent, William J. Windsor, answered this question 15(a) with the word "no", inserted in the place provided for response. At the time the Respondent, William J. Windsor, gave the answer to question 15(a), he knew or should have known that the answer was false and untrue since he had failed to reveal, disclose and fully explain the revocation of his contractor's license (RG- 00l2898) on January 8, 1975, by the Florida Construction Industry Licensing Board pursuant to Respondent-licensee, William J. Windsor, having pled guilty to eleven (11) charges of violation of 468.112, F.S., at a formal hearing held on December 20, 1974, Hillsborough County Courthouse, Tampa, Florida. A copy of the notice of revocation of the Respondents license held with the Florida Construction Industry Licensing Board, is Petitioner's Exhibit #3, admitted into evidence and accepted as fact. The date of this letter of notification is January 29, 1975. The Respondent, William J. Windsor, tried to explain his failure to answer questions 6 and 15(a) above, by stating that he had made numerous inquires of the Florida Real Estate Commission about the possibility of being granted a real estate salesman's license in view of his plea of nolle contendre and probation for the aforementioned offenses. The summary of the contact with the Florida Real Estate Commission, put concisely, would be that the Real Estate Commission did not foreclose the possibility of the Respondent being granted a real estate salesman's license; however, no one in the Florida Real Estate Commission office indicated that the Respondent would not be required to answer questions 6 and 15(a) completely. Respondent's Exhibit #1 is a copy of a letter of May 30, 1975, from the probation officer of the Respondent, addressed to the Florida Real Estate Commission This letter concerns the possibility of Respondent, William J. Windsor, obtaining a real estate salesman's license, and is a part of the contact which the Respondent had with the Florida Real Estate Commission.
Recommendation It is recommended that the registration of the Respondent, William J. Windsor, as a real estate salesman, license no. 0158593, be revoked. DONE AND ORDERED this 16th day of March, 1977, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire 2699 Lee Road Winter Park, Florida 32789 William J. Windsor c/o Warson Corporation of Jacksonville 6206 Atlantic Boulevard Jacksonville, Florida Joseph C. Black, Esquire 1106 Blackstone Building Jacksonville, Florida 32202
The Issue Whether Petitioner's application for a real estate salesman's license should be approved.
Findings Of Fact Petitioner is Victor Kevin Koellner. By application, he sought licensure as a real estate salesman. Petitioner was a unsuccessful candidate for the December 1988 real estate salesman's licensure examination. Petitioner received a score of 74. A score of 75 is required for licensure. Each correct answer has a grade value of one (1) point. Candidates are instructed to choose the most correct answer from among the multiple choice answers given. Petitioner challenges the answers selected by the Florida Real Estate Commission as correct as to questions numbered 15 and 52, on the test administered on December 5, 1988. Question 15 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1. The commission holds that the correct answer to question 15 is D. (Do any of the above). The Petitioner alleges that the better answer is A. (Request an Escrow disbursement order from the Florida Real Estate Commission). Section 475.25(1)(d), Florida Statutes, supports the Respondent's conclusion. Seventy-three (73%) percent of the candidates taking the examination on December 5, 1988 answered the question correctly. Question 52 is confidential under the provisions of Section 119.07(3)(c), Florida Statutes, but appears in Respondent's Exhibit 1 (page 2). The commission holds that the correct answer is C. (Pay it at the closing). The Petitioner alleges that the correct answer is D. (Not pay it). The question asked what should the seller do concerning the sales commission at the closing. Based on the facts given in the Florida Real Estate Handbook, 1987 Edition, page 272, the seller would have no option but to pay the commission at closing. Sixty and 3/10 (60.3%) percent of the candidates taking the examination on December 5, 1988 answered question 52 correctly.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure. DONE AND ENTERED this 28th day of September, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 28th day of September, 1989. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Respondent's Proposed Findings: 1-8. Adopted in substance. Petitioner's Proposed Findings: Paragraphs 1,2,3,4,5 (in substance), 7, and 10 are accepted. Paragraphs 6,8 and 9 are rejected as not relevant. COPIES FURNISHED: Victor Kevin Koellner, pro se 1385 Taurus Court, Merritt Island, Florida 32953 E. Harper Field, Esquire Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Real Estate Legal Services 400 West Robinson Street Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Respondent Freedom of Choice Realty, Inc., is a registered corporate real estate broker holding license number C00213882. Respondents Richard S. Testut, A. C. Kibler and Beatrix Meyer-Burghagen are registered real estate brokers holding licenses numbered 0180949, 0047414 and 0145168, respectively, and these individuals are officers of Respondent Freedom of Choice Realty, Inc. In addition, Beatrix Meyer-Burghagen holds a license to operate real estate school named Florida Real Estate Clinics, Inc., which is also a Respondent herein. In support of the allegations in its Administrative Complaint the Petitioner presented testimony and evidence from five witnesses. The first, Stephen E. Thomas, Jr., is an officer of Respondent, Freedom of Choice Realty, Inc., and he is also an officer of Florida Real Estate Council, Inc. Neither Mr. Thomas nor Florida Real Estate Council, Inc., hold any real estate licenses, and they are not parties to this proceeding. Florida Real Estate Council, Inc., was formed to offer licensed salespeople an opportunity to belong to their own association. During the month of April, 1980, this organization sponsored a series of public meetings to which inactive licensees were invited by means of a flier which was mailed to approximately 21,000 of them in South Florida. The purpose of these meetings was to inform inactive real estate salespeople concerning the status of their licenses after June of 1980. Generally, these fliers conveyed the impression that inactive licenses had been placed in jeopardy by a change in the real estate law, and the information conveyed at the public meetings reiterated the existence of an apparent threat to these licenses. Two other witness presented by the petitioner established the content of one of the public meetings held by Florida Real Estate Council, Inc., in April of 1980. The remaining two witnesses were presented to clarify the actual changes that were made in the real estate law on July 1, 1980. There was no truth or substance to the information conveyed to over 21,000 inactive licensees concerning the status of these licenses as a result of statutory changes made in 1980. However, this information was not established to be more than an inaccurate lay interpretation of the Florida Statutes by Stephen E. Thomas, Jr., or by Florida Real Estate Council, Inc. In summary, the Petitioner's evidence fails to prove a conspiracy among the Respondents as alleged in the Administrative Complaint. Except for the fact that Stephen E. Thomas, Jr., is an officer of both Florida Real Estate Council, Inc., and Respondent Freedom of Choice Realty, Inc., insufficient evidence was presented to establish a connection between these corporations. Any false and misleading statements or information disseminated at the public meetings and by flier was the action of Mr. Thomas, individually, and/or Florida Real Estate Council, Inc., neither of whom are subject to the jurisdiction of the Board of Real Estate, and neither of whom are parties to this proceeding. The evidence does not support a finding that any of the Respondents conspired together for the purpose of distributing false information to real estate license holders, as alleged. Nor was there substantial, competent evidence that the Respondents, or any of them received financial benefit either from the flier or the public meetings. Finally, based upon the testimony of Petitioner's witness, Stephen E. Thomas, Jr., and evidence from the only Respondent who testified, Richard S. Testut, Freedom of Choice Realty, Inc., attempted to operate a real estate brokerage business beginning on July 1, 1980. The initiation on July 2, 1980, of the investigation which resulted in the filing of the administrative Complaint under consideration here adversely affected its employees, as well as potential employees, to such an extent that no sales or commissions could be earned. However, this company did have a staff, listings, sales meetings, literature, and advertised to recruit salespeople. Thus, the Petitioner's contention that this corporation neither actively employed any licensees, or performed any brokerage services, was not proven.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint filed in this case be dismissed. THIS RECOMMENDED ORDER entered on this 18 day of February, 1981. 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 18 day of February, 1981. COPIES FURNISHED: Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Alan H. Konigsburg, Esquire 1700 East Las Olas Boulevard Suite 202 Fort Lauderdale, Florida 33301 Mr. Richard S. Testut 4180 Coral Springs Drive Coral Springs, Florida 33035
The Issue Whether Respondent's real estate broker's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Fred J. Will was a licensed real estate broker in the state of Florida having been issued license number 0142418, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida 32014. At all times material to this proceeding, Richard P. Pollock was a licensed real estate salesman in the state of Florida having been issued license number 0139861, c/o Fred J. Will, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida, with a last listed home address of Post Office Box 2085, Flagler Beach, Florida 32036. Either in late December 1987 or early January 1988, Pollock approached Will with the idea of opening a real estate office using Will's real estate broker's license wherein Pollock would run the office since Will was currently employed managing the self storage facility of Regency Health Care Centers, Inc. In late January 1988, Will filed a Request For License or Change of Status Form using license number 0142418 wherein he advised the Petitioner that he would be operating under Will Realty located at 326 1/2 South Beach Street, Daytona Beach, Florida. Upon opening the offices at 326 1/2 South Beach Street, Will opened an operating or business bank account and an escrow bank account for the Will Realty at the Commercial National Bank (Commercial) Only Will was authorized to write checks on the excrow account. There was insufficient evidence to show whether any funds were ever deposited in the business or escrow account at Commercial. Once the office and bank accounts were opened, Will left the daily operation of the office to Pollock and was at the office only a couple of times between the time it was opened in late January 1988 and when it was closed around April 23, 1988. The "agreement", as such, between Will and Pollock was a 50/50 "split" once the business "got going". Will did not receive any compensation from Pollock for the "use of his license". Will did not receive any money from Pollock in regard to Will Realty, personally or for deposit in either bank account at Commercial. The "agreement" was that Will would allow Pollock to "work under" his real estate broker's license. Will did not have any knowledge of the advertising being used by Pollock for Will Realty such as newspaper ads or business cards until just before the office closed in April 1988. Will did not have any knowledge of the forms being used by Pollock for Will Realty such as contracts or agreements for advance fee arrangements or receipts evidencing payment of such fee until just before the office closed in April 1988. Additionally, Will did not have any knowledge of the advance fee arrangement which Pollock may have had with prospective tenants as payment for securing rentals until just before the office closed in April 1988. Will did not have any knowledge of Pollock opening the bank accounts at Coast Federal Savings and Loan Association (Coast) in the name of Will Realty until just before the office closed in April 1988. None of the funds received by Pollock from prospective tenants while with Will Realty were deposited in the accounts at Commercial. Nor did any of the funds collected by Pollock from prospective tenants while he was with Will Realty go to Will personally. During the latter part of March 1988, Donna Elliott approached Pollock through Will Realty for the purpose of finding a home to rent. Pollock arranged for Edward R. Brown to show Elliott a home he had for rent. Elliott eventually rented this home and gave Pollock a check in the amount of $100.00 dated March 26, 1988 as a deposit on the home. On March 31, 1988 Elliott mailed Pollock another check in the amount of $1,000.00 as rent for the Brown home. The funds from these two checks were deposited in the account at Coast. Brown experienced some difficulty in getting Pollock to pay the deposit and rent collected from Elliott. However, once Will became aware of the situation he demanded that Pollock pay over the deposit and rent and, as a result of Will's effort Brown received $575.00 from Pollock. After paying Brown the $575.00 Pollock disappeared and Brown demanded the balance from Will since Pollock was working under Will's real estate broker's license. At first, Will agreed but later on advice of counsel declined to pay on the basis that it was not his responsibility. Brown filed suit and was awarded a judgment for the balance which Will paid. Around the middle of April 1988 Diane Smith approached Pollock for the purposes of renting a home. Smith paid Pollock an advance fee of $75.00 for service to be rendered by Pollock in securing her a rental home. However, before Pollock found a rental home for Smith he disappeared without returning Smith's fee. Within a short period after Smith paid the advance fee she went to the office of Will Realty only to find it closed and Pollock gone. There was no evidence that Smith made a demand on Will for the return of the advance fee paid to Pollock. After Will became aware of the situation he called Petitioner's Orlando office and was informed by Judy Smith that he should close the office immediately. Will followed this advice and closed the office sometime around April 23, 1988. As soon as Will began to receive complaints from Pollock's clients he got involved with Pollock and attempted to correct the problems but Pollock disappeared before Will could correct the situation. There was insufficient evidence to show that while Pollock was at Will Realty, any of his prospective tenants, other than Smith, specifically Catherine Vick, failed to receive reimbursement for any advance fee paid to Pollock where rentals were not obtained for the prospective tenant. Will was not directly involved with any of the transactions between Pollock and the prospective tenants and did not have any knowledge of these transactions until shortly before Pollock disappeared and Will Realty was closed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Fred J. Will guilty of violating Section 475.25(1) (d) and (e), Florida Statutes, and for such violation impose an administrative fine of $500.00 and issue a reprimand. In recommending the reprimand I have taken into consideration the harshness of a suspension or revocation and feel that under the circumstances of this case that a reprimand and a fine is more appropriate. See: Webb v. Florida Real Estate Commission, 351 So.2d 71 (2 DCA Fla. 1977). It is further RECOMMENDED that Counts VI, IX and XIV of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 22nd day of February, 1990. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Robert W. Elton, Esquire 648 S. Ridgewood Avenue Daytona Beach, Florida 32014 Fred J. Will 2281 Carmen Daytona Beach, Florida 32119
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.
The Issue Whether or not the Petitioner, Barbara A. Story, is eligible to sit for the Florida Real Estate Commission's licensure examination.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and exhibits, and the entire record compiled herein, the following relevant facts are found. On or about July 26, 1981, Petitioner, Barbara A. Story, filed an application for licensure as a real estate salesperson with the Respondent, Department of Professional Regulation, Board of Real Estate. By letter dated September 28, 1981, Randy Schwartz, Respondent's counsel, advised Petitioner that the Respondent, at its duly noticed meeting of September 23, 1981, denied Petitioner's application for licensure. That letter recited that the specific reason for the Respondent's actions was baked on Petitioner's answer to question six (6) on the licensing application and her criminal record. In this regard, evidence reveals and Petitioner's application reflects that Petitioner was convicted in the Southern District of Florida (West Palm Beach), on September 8, 1978, of embezzlement of monies from a bank, in violation of Title XVIII, United States Code, 656. Petitioner was sentenced by the Honorable C. Clyde Atkins on that date, pursuant to the split-sentence provision of Title XVIII, United States Code, 3651, in that she was to be confined in a jail-type institution for a period of one (1) month, and thereafter, the remainder of the sentence of confinement [one (1) year] was suspended. Upon discharge from incarceration, Petitioner was to be placed on probation for a period of five (5) years under the special condition that she make restitution for the monies embezzled. Jurisdiction of that case was transferred to the Middle District of Florida, and on March 29, 1982, Petitioner was terminated from probation supervision. Robert E. Lee, a chief U.S. probation officer, who supervised petitioner while she was under the supervision of the subject office as a probationer, indicates that Petitioner reflected a favorable attitude toward her probation officer, remained gainfully employed and abided by all the rules of probation. Petitioner has never been arrested since her conviction in 1978, and has received only one (1) traffic citation during December of 1981. Petitioner has been continuously employed since her conviction and is presently a secretary/receptionist where she is in charge of and controls office business for Mobile Craft Wood Products in Ocala, Florida. Petitioner has been in charge of processing cash sales for the past four (4) years. Petitioner is presently making restitution to the savings and loan association that she embezzled. Charles Demenzes, a realtor/broker who owns Demenzes Realty Inc., has known Petitioner approximately one (1) year. Mr. Demenzes spoke highly of Petitioner and was favorably impressed with her desire to become licensed as a real estate salesperson. Mr. Demenzes is hopeful that Petitioner will be afforded an opportunity to sit for the licensure examination such that she can join his sales force, if she successfully passes the examination. Respondent takes the position that Petitioner, having been convicted of the crime of embezzlement, which involves moral turpitude and therefore is ineligible to sit for the Respondent's licensure examination. In this regard, counsel for Respondent admits that the Board, when acting upon Petitioner's application for licensure, did not consider the fact that Petitioner has been released from probation supervision inasmuch as that factor did not exist at the time Petitioner made application for licensure. Character letters offered by Petitioner were highly complimentary of Petitioner's reputation and abilities as an employee. (Petitioner's Composite Exhibit No. 1.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby RECOMMENDED: That the Respondent enter a final order granting Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 13th day of October, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 13th day of October, 1982.
