Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed by Petitioner on November 20, 1980, be dismissed by final agency order. DONE AND ORDERED this 17th day of February, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1981. COPIES FURNISHED: William D. Moore, Esquire Ella Jane P. Davis, Esquire 700 Barnett Bank Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building, MS 58 Tallahassee, Florida 32301 J. Lawrence Johnston, Esquire Post Office Box 1170 Tallahassee, Florida 32302
The Issue The issues are: (1) whether Petitioner is qualified for a pari-mutuel wagering occupational license as a greyhound owner; and, (2) whether Petitioner is entitled to waiver of the provisions in accordance to Chapter 550, Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence adduced at hearing, the following Findings of Fact are made: Petitioner, Stephen M. Morris, submitted an application for a pari-mutuel wagering occupational license as a greyhound owner on or about February 24, 2005. On his application for a pari-mutuel wagering occupational license, Petitioner accurately reported that he had been convicted of the following three felonies: (1) possession and sale of a controlled substance, (2) trafficking in controlled substance (cannabis) in excess of 100 pounds, and (3) dealing in stolen property. The foregoing felony convictions were in or about 1976, 1984, and 1993, respectively, and were the result of offenses that occurred in Florida. Due to Petitioner's felony convictions, as noted in paragraph 2 above, his application for a pari-mutuel wagering occupational license was subject to denial. Consequently, on February 24, 2005, in addition to his application for a pari-mutuel wagering occupational license, Petitioner also requested that a waiver be granted so that he could obtain the license. Petitioner's application and his request for waiver did not include any information which would establish his rehabilitation or demonstrate that he has good moral character. As part of the Division's review of Petitioner's request for waiver, on or about April 5, 2005, Mr. Toner interviewed Petitioner. During the interview with Mr. Toner, Petitioner had the opportunity to present information that established his rehabilitation and demonstrated his present good moral character, but he did not produce such information. In light of the information regarding Petitioner's felony convictions, which are undisputed and included in Petitioner's application, Petitioner does not meet the eligibility requirements for the license which he seeks. By Petitioner's own admission, he was convicted of the felony offenses noted in paragraph 2 above. The number of felony convictions and the times that the offenses were committed, show a pattern of serious criminal behavior and recidivism. Petitioner may be rehabilitated and may have present good moral character. However, Petitioner did not testify at the final hearing and presented no evidence that he has been rehabilitated and has present good moral character. Absent from the record is any testimony from Petitioner or from Petitioner's friends, relatives, business associates, employers, or church members regarding Petitioner's good conduct and reputation subsequent to the date of his last felony conviction. In absence of any evidence that Petitioner has been rehabilitated and has present good moral character, the Division has no basis to grant Petitioner a waiver.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, enter a final order denying Petitioner, Stephen M. Morris', application for a pari-mutuel wagering occupational license and his request for waiver. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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, 2005. COPIES FURNISHED: Stefan Thomas Hoffer, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering 1940 North Monroe Street Tallahassee, Florida 32399-2202 Stephen M. Morris 162 Warren Avenue New Smyrna Beach, Florida 32168 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for determination is whether Respondent should deny Petitioner's application to be licensed as a resident insurance adjuster pursuant to Florida Administrative Code Rule 69B-211.042, because Petitioner is on probation and is participating in a pre-trial intervention program; and, if so, whether Petitioner is entitled to a default license because Respondent did not grant or deny the license within 90 days pursuant to Subsection 120.60(1), 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 plea of guilty 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 on the grounds that Petitioner pled guilty to a crime of moral turpitude, within the meaning of Subsection 626.611(14), Florida Statutes (2002), for which denial of his application is mandatory; that Petitioner pled guilty to a crime not involving moral turpitude, within the meaning of Subsection 626.621(8), Florida Statutes (2002), for which denial of his application is discretionary; that Florida Administrative Code Rule 69B-211.042(6) and (14) prohibits 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 deletes the ground that Petitioner pled guilty to a crime of moral turpitude, but retains the other grounds for denial stated in the Notice of Denial issued on September 25, 2003. 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. 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. On January 22, 2003, Respondent sent a letter to Petitioner inquiring into the Georgia arrest in accordance with Subsections 626.611(14), 626.621(8), and 626.631, Florida Statutes (2002). In response to the letter from Respondent, Petitioner filed the application for a resident adjuster license that is at issue in this proceeding. Petitioner attached a letter explaining the circumstances of the criminal proceeding in Georgia and three letters of recommendation. The second page of the application that Petitioner submitted notifies Petitioner 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. The letter did not state that Respondent intended to deny the application on the ground that Petitioner violated Subsection 626.621(8), Florida Statutes (2002), by pleading guilty to a crime that does not involve moral turpitude. 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 position stated by Respondent in the letter dated April 7, 2003, is substantially similar to that taken by Respondent during the hearing and in its PRO. Respondent does not assert that Respondent should deny the application on the ground that Petitioner pled guilty to a crime for which Subsection 626.621(8), Florida Statutes (2002), gives Respondent discretionary authority to deny the application. Respondent's position is consistent with the preponderance of evidence. The preponderance of evidence shows that Petitioner is rehabilitated and has no propensity to commit the crime for which he is under probation in Georgia. Rather, Respondent relies upon a rule that Respondent interprets as imposing specific waiting periods following the plea agreement in Georgia before Petitioner may apply for a resident adjuster license in Florida. Respondent proposes to deny Petitioner's application for a resident adjuster license on the basis of Respondent's interpretation of Florida Administrative Code Rule 69B-211.042. Respondent interprets Florida Administrative Code Rule 69B-211.042(6) as prohibiting Respondent from considering the application of any applicant who is on probation until the applicant has satisfactorily completed the probation. Respondent interprets Florida Administrative Code Rule 69B-211.042(8) as requiring Petitioner to wait five years after the plea in Georgia before Petitioner is eligible for licensure in Florida. Respondent interprets Florida Administrative Code Rule 69B-211.042(14)(b) as prohibiting Respondent from granting a license application to Petitioner while Petitioner is in a pre-trial intervention program. 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 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 the denial, suspension, or revocation of the existing license. Respondent proposes to impose a waiting period against Petitioner without first satisfying the statutory prerequisite of a denial, suspension, or revocation of an existing license within the meaning of Subsection 626.207(1), Florida Statutes (2002). The waiting period proposed by Respondent does not follow a denial, suspension, or revocation of an existing license. Rather, the proposed waiting period follows a plea entered by Petitioner in Georgia on May 14, 2002. The application for a resident adjuster license that is at issue in this proceeding indicates that no administrative action was ever taken against Petitioner's nonresident adjuster license, and Respondent stipulated that Petitioner answered all questions on the application truthfully. The Florida licensure file that Respondent maintains shows no administrative action against Petitioner's nonresident adjuster license. Respondent proposes to apply a waiting period in a manner that does not follow denial, suspension, or revocation of either the previous nonresident adjuster license or the resident adjuster license that Petitioner seeks in this proceeding. In effect, Respondent's proposed agency action would effectively amend Subsection 626.207(1), Florida Statutes (2002), by denying Petitioner's application for a resident adjuster license on the basis of a waiting period, rather than on the basis of one of the statutory provisions enumerated in the enabling legislation. Such action would have the effect of enlarging or modifying the specific provisions of Subsection 626.207(1), Florida Statutes (2002), that require the imposition of a waiting period to follow Respondent's denial, suspension, or revocation of an existing license. Respondent orally advised Petitioner that Respondent was authorized by rule to approve Petitioner's application if Petitioner were successful in terminating the Georgia probation early. However, Subsection 120.60(1), Florida Statutes (2002), required Respondent to approve or deny the application no later than July 2, 2003. Petitioner sought additional time to petition the Georgia court to terminate his probation early. On June 27, 2003, Petitioner signed a "Waiver of Deemer Date" (Waiver) that suspended for 60 days the requirement in Subsection 120.60(1), Florida Statutes (2002), for Respondent to approve or deny the license application within 90 days after receipt of the application. In relevant part, the Waiver stated: I hereby voluntarily and knowingly waive the time requirement regarding final action on my license application as specified in Section 120.60(1), Florida Statutes. Specifically, I waive the provision that requires the Department of Financial Services to either approve or deny my pending application for licensure as a company employee property & casualty adjuster within 90 days after receipt of the completed application. This waiver is effective for 60 days. (emphasis supplied) The 60 days in which the Waiver was effective, expired on August 31, 2003. However, approximately six days remained in the 90-day statutory period when Petitioner signed the Waiver on June 27, 2003. The 90-day statutory period expired six days after August 31, 2003, on or about September 6, 2003. Petitioner attended a court hearing in Georgia sometime in August 2003, in an attempt to persuade the Georgia court to terminate Petitioner's probation. Petitioner was unsuccessful and remained on probation at the time of the administrative hearing in this proceeding. Petitioner did not advise Respondent of the outcome of the Georgia hearing until September 4, 2003, when Respondent inquired of the status of Petitioner's application. On September 4, 2003, Respondent had actual notice from Petitioner that Petitioner had been unsuccessful in his attempt at early termination of his probation. Respondent did not issue its Notice of Intent to Deny the license until September 25, 2003. Respondent's letter dated April 7, 2003, provided Petitioner with written notice of Respondent's intent to deny the license application unless Petitioner was successful in obtaining early termination of his probation. Oral communications from Respondent's authorized representative also indicated that Respondent intended to deny the license application if Respondent were unable to license Petitioner temporarily. The author of a cover letter issued with the Waiver on June 26, 2003, stated, in relevant part, that the author did not have an answer to the issue "we discussed" regarding a temporary license. The author indicated that she would contact Petitioner as soon as she had an answer. The record discloses no answer prior to the Notice of Intent to Deny dated September 25, 2003.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's application for a resident adjuster license. DONE AND ENTERED this 13th day of August, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 13th day of August, 2004. COPIES FURNISHED: Keith Luther Fernandez 605 Casa Park Court M Winter Springs, Florida 32708 Keith Luther Fernandez 3667 Oakhill Drive Titusville, Florida 32780 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Pete Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether or not Petitioner may be issued a 2-COP License to operate a business to be known as the 101 Club located at 424 North 11th Street, Palatka, Florida.
Findings Of Fact On September 21, 1987, Petitioner, Johnnie Lee Simmons, submitted a completed application for a new permanent and temporary 2-COP (beer and wine) alcoholic beverage license(s) to the Respondent, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco (DABT) at DABT's Gainesville, Florida District Office. The application involved the proposed "101 Club, located at 424 North 11th Street, Palatka, Putnam County, Florida." At the time Petitioner submitted the application(s) he was issued a temporary ninety-day license, numbered 64-00378. By the terms on the face of this first or initial temporary license, it expired on December 19, 1987. This first or initial temporary license likewise indicated on its face that it would expire upon disapproval of the pending permanent license application. The application listed Willie Lee Simmons, Sr., the Petitioner's father, as having a direct interest in the "101 Club" through a personal loan of $1,000.00 by which Petitioner would finance the "101 Club". Also in the Personal Questionnaire portion of the application, Petitioner admitted that he and his father had once held beverage license number 64-00029 for the "Palatka Blue Diamond", a bar previously located at the same address and location as the proposed "101 Club", and further admitted that the prior license had been revoked. Other "Personal Questionnaires" were also submitted simultaneously with, and as part of, the initial application. These had been completed by Petitioner's wife; the father, Willie Lee Simmons, Sr.; and Willie Lee Simmons, Sr.`s wife because the property at 424 North 11th Street, Palatka, Florida is owned together by these four family members. Petitioner and his father, Willie Lee Simmons, Sr., were formerly co- license holders for the "Palatka Blue Diamond". The revocation of that prior license was based upon Department of Business Regulation, Division of Alcoholic Beverage Control v. Willie Lee and G. L. Simmons d/b/a Palatka Blue Diamond, DOAH Case No. 83-3023, resulting in a July 12, 1984 Final Order, which was upheld on appeal to the First District Court of Appeal in Simmons v. Department of Business Regulation, Division of Alcoholic Beverages, 465 So.2d 578 (Fla. 1st DCA 1985). The First District Court of Appeal found, "[T]here was competent substantial evidence to support the hearing officer's findings that the underlying violations had occurred. We also conclude there was sufficient evidence of flagrant, persistent and recurring violations from which the hearing officer could infer that the licensees failed to supervise the premises in a reasonably diligent manner and thus, were culpable." Significant and material undisturbed findings of fact contained in the underlying Recommended Order of that case were that "Respondents did keep a public nuisance on the licensed premises by maintaining it as a place visited by persons for the unlawful use or sale of a controlled substance [marijuana], in violation of Section 823.10, F.S." The hearing officer specifically found that although Petitioner might not have been on the premises of the "Palatka Blue Diamond" when drug sales and gambling were going on, he surely knew about these activities from conversations with his wife who tended bar there. When Petitioner submitted the initial license application for the "101 Club" on September 21, 1987, Sgt. Homer Scroggin, DABT Supervisor of the Gainesville Sub-District, already knew the Petitioner and had knowledge about the revocation proceedings against Petitioner's prior license for the "Palatka Blue Diamond". He led Petitioner to believe that the prior revocation would not impede the new license application for the "101 Club", but he made no specific promise or guarantee of licensure. On December 1, 1987, seventy-one days after receiving Petitioner's application, DABT issued a written request to Petitioner for information concerning an alleged arrest in North Carolina. Subsequently, on December 16, 1987, DABT issued Petitioner a Notice of Intent to Disapprove his application for permanent licensure for failure to furnish information on the alleged North Carolina arrest. On December 23, 1987, ninety-three days after the license application and four days after the first temporary license had expired, but prior to the agency's completing its background checks, DABT's Gainesville office issued Petitioner the second of five temporary licenses. Also on that day, Petitioner signed a waiver, reading: I, Johnnie Lee Simmons, do hereby wave [sic) the 90 day period for my beverage license Sgt. Scroggin testified that if the Petitioner had not signed the foregoing waiver, he, Sgt. Scroggin, would have denied the Petitioner's application for a permanent 2-COP license at that point in time, December 23, 1987, because DABT cannot grant a license without receiving information concerning fingerprints and that information had not arrived. While it is clear that Sgt. Scroggin, told this to Petitioner, thereby inducing him to sign the waiver, the statement itself is erroneous and not credible because the thrust of the entire remainder of Sgt. Scroggin's testimony, the greater weight of the documentary evidence, and much of the testimony of DABT Licensing Bureau Chief, Barry Schoenfeld, is that Sgt. Scroggin's recommendations from the District are not binding on the Bureau of Licensing, located in Tallahassee, that the ultimate decision to grant or deny an application is made by Schoenfeld unless a prior revocation is involved, and that in unusual circumstances, such as appearance of a prior revocation history, an entire committee review procedure, culminating in the signature of the Director of DABT, Leonard Ivey's signature, was in place, and that in each alternative situation, Sgt. Scroggin was only the first recommender.1/ Moreover, the specific terms of the December 16, 1987 Notice of Intent to Disapprove is contrary to Sgt. Scroggin's December 23, 1987 statement to the Petitioner/applicant. That document provided, in pertinent part: The purpose of this letter is to notify you of our intention to recommend disapproval of your application for a license as referenced above. We are giving you ten (10) days in which to correct the deficiencies or supply additional documentation to correct the reason(s) for the recommended disapproval as indicated on the reverse of this letter. The response must be received or postmarked no later than ten (10) days from the date of this letter. If you have not complied within this time period the application will be sent to the Bureau of Licensing and Records in Tallahassee to be disapproved. No amendments or supplements will be accepted after this ten (10) day period unless specifically requested by the Division. Any documentation submitted after this period will be returned. XXX The application is deficient as indicated: 14 day letter was sent to applicant requesting disposition on case #FL0540000 Offense #4999, to date we have not heard from applicant as to his ability to clear up this matter. 14 day letter was dated on December 1, 1987. Despite the agency's characterization of this December 16, 1987 document (R-4, page 2), as an "intent to disapprove/deny," it is clearly nothing more than a repeated untimely agency request for the same information already untimely requested on December 1 (R- 4, page 1; see Finding of Fact No. 6, supra.) It is an untimely request for information, and not a denial of the permanent application. It also is clearly misleading to the applicant concerning his rights with regard to time limits which had become effective by operation of law. It specifically represents that Petitioner had until December 25 to prevent denial of his application, when in fact, the 90-day statutory period starting with the initial application date would lapse on December 20. It is also noted that Schoenfeld and Scroggin agreed, with regard to a subsequent Notice of Intent to Disapprove, that such a notice does not constitute final agency action; therefore, it is clear that both these notices in December, 1987 could not be "final" either. For these reasons and for the reasons set forth in the following Conclusions of Law, Sgt. Scroggin's statement was an erroneous legal conclusion, which either by error or design misled the Petitioner. Sgt. Scroggin also led Petitioner to believe that a backlog in license processing was the reason he needed the waiver signed. Petitioner was subsequently issued three more temporary licenses on March 31, 1988, June 30, 1988, and September 27, 1988. All five temporary licenses clearly notified Petitioner that they expired 90 days from issuance and would expire if the permanent license application were disapproved. The December 23 license lapsed March 22, nine days before the issuance of the March 31 license. The March 31 license lapsed June 28, two days before the June 30 license was issued. All the temporary licenses were issued without fee and permitted Petitioner to continue to operate his bar/nightclub, the "101 Club", pending further license processing which included out of state arrest inquiries, FBI fingerprint processing, and further background checks. Approximately January 22, 1988, the criminal background checks on all four members of Petitioner's family were completed and determined to be no impediment to licensure. On February 4, 1988, Sgt. Scroggin recommended that Tallahassee DABT approve the Petitioner's application and that it issue the requested permanent license. On or about May 18, 1988, Sgt. Scroggin received a memorandum from Mr. Schoenfeld questioning Sgt. Scroggin's February 4 favorable recommendation. Sgt. Scroggin then reconsidered and recommended that Petitioner's application should be disapproved for several reasons. At formal hearing, however, Sgt. Scroggin was unable to provide any evidence supportive of the allegations/reasons contained in this disapproval recommendation. Rather, and contrariwise to those allegations, Sgt. Scroggin admitted that his Gainesville office had received no complaints of any kind relating to the "101 Club" during the 15 months it had operated on its five temporary licenses; that he had, subsequent to his disapproval recommendation, determined that only one police incident report involving the "101 Club" had ever been made; and that that single report had been made by a customer whose boyfriend had slapped her. The DABT witnesses concede that this incident report does not reflect badly in any way on any "101 Club" principal and would not preclude issuing the license. On August 4, 1988, DABT sent Petitioner its "Amended Notice of Intent to Disapprove," naming Petitioner's prior "Palatka Blue Diamond" license revocation as the reason for disapproval. By the terms of that Amended Notice, and in response to it, Petitioner's attorney timely submitted further information, and Sgt. Scroggin, untimely, but by August 19, 1988, advised Tallahassee DABT in favor of licensure approval due to the results of his check of local police incident reports. On September 27, 1988, the fifth temporary license was issued to Petitioner with the approval of Tallahassee DABT. On December 1, 1988, Tallahassee DABT issued its final "Notice of Disapproval," citing the prior license revocation and Petitioner's and his father's lack of good moral character as the only reasons for the license denial. The record as a whole clearly shows that the only unfavorable evidence of moral character that DABT had before it with regard to this license application arose out of the prior license revocation 4-5 years before. Petitioner/applicant, Johnnie Lee Simmons, is 40 years old. He has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Willie Lee Simmons, Sr., Petitioner/applicant's 58 year old father and an interested party, also has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of any offense against the beverage laws of Florida, the United States, or any other state; has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) in this state or any other state or the United States of soliciting for prostitution, pandering, letting premises for prostitution, keeping a disorderly place, or illegally dealing in narcotics; and has never been convicted (or otherwise pled guilty or nolo contendere or suffered a bond forfeiture) of a felony in this state, or the United States. Upon the testimony of Dorothy Carter, accountant- bookkeeper for, and long-time friend of, all the Simmons family members, the testimony of Sgt. Scroggin, and admissible hearsay statements of Palatka Chief of Police Hill and Assistant Chief of Police Rowe (P-12), it is found that as of the date of formal hearing, Petitioner and his father respectively have good reputations for honesty, fair dealing, and personal character in the Palatka, Putnam County community. Both men are reputable and responsible business persons, each employing between 25 and 40 migrant laborers. They pay their taxes. They have established credit. Further, upon the record as a whole, it is found that the Simmons father and son, between them, support three Palatka city-league baseball teams and are also engaged in other activities which benefit the community with an emphasis on youth. Also, Johnnie Lee Simmons, the applicant/Petitioner, has long been active in the local chapter of the NAACP and served two years as its President. In so finding, the undersigned has assessed Mrs. Carter's credibility in several respects. First, it is recognized that as a social friend and business associate of all the Simmons family members, her view of them is favorably weighted by that association. Second, her view of the prior license revocation is also affected in their favor by their business and social association. Mrs. Carter has, in her own mind at least, minimized the importance of the prior license revocation by her belief that all wrongdoing in the "Palatka Blue Diamond" occurred while the Simmons men were out-of-town, for the purpose of transporting laborers to northern farms and while they were not physically within the licensed premises providing active management. This belief of Mrs. Carter is directly contrary to the responsibilities imposed by statute, rule, and case law upon beverage licensees who are required to know and to monitor affairs on their premises, but it is accurate in terms of the factual absence of applicant/Petitioner's absence from the "Palatka Blue Diamond" at times crucial to the prior revocation. However, third, and most importantly, it is found that Mrs. Carter was testifying concerning the status of the Simmons mens' affairs, conduct, and character in 1989, 6-7 years after the prior revocation events, 4-5 years after actual revocation, and at a time when other evidence confirms that Petitioner and his father have centralized all their business and community activities within the Palatka community. The moral character of the principals approximately 5 years after the prior revocation, at the time of the new application and the de novo formal hearing, is material and persuasive. Mrs. Carter, as a long-time local resident, has had opportunity and reason to know the current situation, and her testimony that the Simmons father's and son's character (based on her own experience and opinion) is now "good" is credible and unrefuted. Moreover, her conclusion with regard to their good character and reputation (arising from word of mouth in the community) is reinforced by Sgt. Scroggin's investigation and ultimate favorable recommendation, which in turn was based on the customary predicate for "reputation in the community". Mrs. Carter's evidence of current good character is direct and unrefuted. Sgt. Scroggins' testimony is in the nature of reputation testimony but is bolstered by his personal examination of the police incident reports and corroborates the statements/opinions of Palatka's Chief and Assistant Chief of Police, which, though hearsay, are admissible pursuant to Section 120.58 F.S. Sgt. Scroggins' and the officers' opinions are consistent as to reputation with Mrs. Carter's unrefuted opinion as to character.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages, issue a Final Order confirming that the permanent 2 COP beverage license was issued to Petitioner pursuant to operation of law on December 20, 1987. DONE and ENTERED this 5th day of September 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 5th day of September, 1989.
The Issue Whether Petitioner's license as a Professional Surveyor and Mapper became void on March 1, 1997, by operation of Section 455.271, Florida Statutes. If so, whether the Board of Surveyors and Mappers (Board) has the authority to reinstate Petitioner's license in any manner other than that set forth in Section 455.271(6), Florida Statutes. Whether the Board is estopped from asserting that Petitioner's license should not be reinstated. Whether Petitioner is entitled to have his license reinstated by operation of Section 472.041, Florida Statutes.
Findings Of Fact Petitioner was initially licensed as a Professional Surveyor and Mapper on July 11, 1986, and issued license number 0004297. Such licenses must be renewed every two years pursuant to Section 472.017, Florida Statutes. The Board is an agency of the State of Florida with the duty to regulate those licensed as Professional Surveyors and Mappers. Pursuant to Section 472.015, Florida Statutes, DBPR is the agency of the State of Florida that actually issues such licenses. It is undisputed that Petitioner renewed and maintained an active license through the 1993/1994 biennium, which ended February 28, 1995. There is a conflict in the evidence as to whether Petitioner renewed his license after the 1993/1994 biennium. Petitioner testified that he mailed to DBPR by regular mail a form renewing his license for the 1995/1996 biennium, enclosed a check in the appropriate amount with the renewal form, and requested in writing on the back of the renewal form that the status of his license be changed from active to inactive because he could not at that time meet continuing education requirements. Petitioner produced a copy of the renewal form and a copy of the check, dated February 10, 1995, he said he mailed to DBPR. Petitioner did not know whether his check had been cashed, and he did not receive anything from DBPR reflecting that his license had been renewed and placed in an inactive status. Whenever any licensee renews a professional license, DBPR issues and mails a two-part license containing a wallet portion and a display portion that verifies the renewal. 3/ Petitioner made no effort to determine why his check had not been cashed or why he had not received his renewed license. Petitioner's failure to follow-up on his renewal request can be explained, in part, by the fact that his life was in disarray, both from a personal and a professional perspective. During this period in 1995, Petitioner had closed his surveying business and was working in an unrelated business, he was living in the marital residence on an intermittent basis, and he was depending on his estranged spouse and his children to deliver his mail to him. Respondent's records do not reflect that Petitioner took any action after the 1993/94 biennium to renew or inactivate his license. Had Petitioner taken such action, Respondent's records would have contained a renewal request form, the request to inactivate the license, and documentation that a renewed license had been forwarded to Petitioner. Had DBPR received a renewal check from Petitioner, its records would reflect that the check had been received and negotiated. The conflict in the evidence is resolved by finding that Petitioner failed to renew his license after the 1993/1994 biennium. On March 1, 1995, Petitioner's license became delinquent pursuant to Section 455.271(5), Florida Statutes. On March 9, 1995, DBPR changed its computer records to reflect that Petitioner's license status had been changed to delinquent. In November 1996, Petitioner's address of record with DBPR was his marital residence, 1620 Southwest 99 Court, Miami, Florida. Petitioner continued to use the marital residence as his address of record with the Board and DBPR until November 1999. There was a dispute in the evidence as to whether DBPR and the Board had Petitioner's correct address of record. Petitioner introduced a roster of individuals and firms holding active Professional Surveyors and Mappers licenses that was prepared from the Board's data base as of October 1994. This roster contained an incorrect address for Petitioner. Respondent established that this roster was not used by either the DBPR or the Board to mail any of the forms or notices at issue in this proceeding. Respondent also established that both DBPR and the Board had Petitioner's correct address of record at all times pertinent to this proceeding. The conflicting evidence is resolved by rejecting Petitioner's contention that the pending cancellation notice was not mailed to his address of record in November 1996. Petitioner testified that he never received any notice that his license was about to be cancelled. The records of DBPR established that a Notice of Pending Cancellation of License was processed by DBPR on November 18, 1996, and mailed to Petitioner at his address of record on November 22, 1996. The notice advised that Petitioner's license would become null and void on March 1, 1997, if the license was not placed on an active or inactive status by that date. The notice also advised that it was the only notice Petitioner would receive before his license became null. Petitioner initiated no communication with either DBPR or the Board in 1996, 1997, or 1998. On March 1, 1997, Petitioner's license became null by operation of Section 455.271(6), Florida Statutes. DBPR entered in its computer system on March 9, 1997, that the status of Petitioner's license had been changed from the classification of "delinquent" to the classification of "null and void." In 1999, Petitioner decided to return to activities requiring licensure as a Professional Surveyor and Mapper. When he applied for a job with a surveying company in the fall of 1999, he learned that his license was classified null and void. Petitioner, through attorney T. S. Madson, II, moved the Board to reinstate his license and requested the opportunity to present argument in support of his motion at the Board meeting scheduled for January 12-14, 2000, in Tallahassee, Florida. Mr. Madson and Petitioner appeared before the Board on January 13, 2000. Upon hearing Petitioner's claim that he had not received the pending cancellation notice in November 1996, the Board voted to reinstate his license. 1/ The Board did not enter a written order memorializing that vote. On March 6, 2000, counsel for DBPR filed a formal motion that the Board reconsider its vote to reinstate Petitioner's license, arguing that the Board lacked the legal authority to reinstate a license that had become null and void. Subsequent to the Board's vote on January 13, 2000, Petitioner engaged in activities that require licensure as a Professional Surveyor and Mapper. Until May 2000, Petitioner sealed surveys using license number 0004297. On May 18, 2000, at a duly noticed meeting in Key West, Florida, with Petitioner and Mr. Madson in attendance, the Board addressed DBPR's motion to reconsider. After debate, the Board voted to grant the motion to reconsider and thereafter voted to rescind its previous order reinstating Petitioner's license. A written Order Rescinding Reinstatement of License was formally entered on May 31, 2000. The basis for the vote was the Board's determination that it lacked the legal authority to reinstate Petitioner's license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application that his license be reinstated. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 13th day of February, 2001.
The Issue Whether Respondent is entitled to a refund of license fees and late penalties.
Findings Of Fact On September 6, 1988, a lien on License No. 68-01319, Series 4-COP, was recorded with the Division of Alcoholic Beverages and Tobacco (Respondent). The named lienholder was Francis D. Sawyer (Petitioner). Framay, Inc., d/b/a Thirsty Parrot was the holder of License No. 68-01319. On May 21, 1990, an administrative action was filed by the Respondent against Framay, Inc., d/b/a Thirsty Parrot. The administrative action, alleged that Framay failed to maintain the license in an active status. Framay never requested a hearing and a Final Order was entered on September 25, 1990, revoking License No. 68-01319. On November 8, 1990, the Respondent filed a Notice to Show Cause alleging failure to comply with the terms of the September 25, 1990 Final Order. On May 6, 1991, a second Final Order was entered revoking License No. 68-01319. In February 1992, the Respondent was contacted by attorney Stanley Chapman as counsel to Petitioner, Sawyer. Petitioner claimed that the Respondent had failed to provide him a point of entry as lienholder to foreclose his lien, and sought to have the license "reinstated in escrow" in order to allow him to proceed in foreclosure. After some discussion, the Respondent agreed to cooperate with Petitioner's efforts to foreclose by not opposing a summary judgement motion filed by Petitioner. Normally, foreclosure of a lien on a revoked license is permitted only when the lienholder brings an action within 12 days of an order or revocation. Even though the time had expired, the Division nonetheless permitted Sawyer to foreclose on the license because Sawyer had a legitimate claim and the Division's interests would not be adversely affected by ignoring the 12 day time frame. In August 1992, Petitioner, through his attorney Stanley Chapman, filed a complaint to foreclose his lienholder's interest in the license. Framay, Inc., d/b/a Thirsty Parrot, Wayne F. Sawyer and the Division were named as defendants. The Petitioner foreclosed on License No. 68-01319 and a Final Judgment of Foreclosure and Transfer of Beverage License was entered on January 27, 1993. Upon the entry of foreclosure, Petitioner, as required by the Respondent, filed an application for the delinquent renewal of License No. 68- 01319. The delinquent renewal of the license required that past due license fees totalling $5,512.50 for the years 1990-1991, 1991-1992, and 1992-1993 be paid to activate the license. Petitioner requested that the Respondent waive the payment of delinquent annual license fees and penalties which the Respondent was seeking prior to issuing the license to any transferee. The Respondent denied the request to waive applicable fees and required payment of delinquent renewal fees in the amount of $5,512.50. Petitioner paid the fee under protest, claiming that the fee was not applicable to this transaction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,
Findings Of Fact Nancy Boles owns and has operated Happy Days Guest Ranch for some 14 years. This facility is licensed as an ACLF and has no record of complaints other than those contested at this proceeding. On or about March 4, 1987, DHRS received a report from an undisclosed source that a resident at the Happy Days Guest Ranch ACLF had been abused by the proprietor, Nancy Boles, and an investigator was sent to the ACLF. Apparently the allegation was that Respondent had slapped a resident. At this time there were approximately 6 residents at the ACLF. After talking to these residents and with Respondent, the investigator, Katherine Massaro, concluded that a substantiated report of abuse had occurred. The HRS Division of License and Certification was notified and a decision was made to relocate the six residents and place a moratorium on further admissions to the ACLF. Additionally, Respondent's application to renew her ACLF license was denied. No evidence was presented that the HRS Division of Adult Services, filed a notification of a confirmed report of abuse against Respondent and placed her on the abuse register. Accordingly, this is not a proceeding challenging a confirmed report of abuse of the aged but is a license revocation proceeding. It is apparent that HRS notified the State Attorney's Office of the alleged abuse and the charges disposed of in Exhibit 1 were preferred. No adjudication of guilt was made in that case. Petitioner's eye witnesses to the alleged abuse were two elderly women. The younger, Mardell Surrency, whose deposition is Exhibit 2, was 75, and the other, Alice Beasley, whose deposition is Exhibit 3, was 86. Both of these women testified that they saw Respondent slap Fowler Simmons, another resident of the ACLF who is senile or has other mental impairment that led these witnesses to conclude that mentally Simmons was "real bad" with the mind of a child who had to be told everything to do. Both witnesses gave an indication (pantomined) of how Respondent slapped Simmons. Unfortunately, a verbal description of this act is not contained in their deposition. Surrency testified that Beasley "was 86 years old so she didn't pay much attention to anything." Beasley, on the other hand, testified that she and "Modelle" were sitting alongside each other when the incident occurred and she and "Modelle" had often talked about how mean Respondent talked to Simmons. Neither ever saw any bruise on Simmons' face or body or ever saw Respondent strike Simmons other than this one time. Both testified Respondent told Simmons to not sit there "like a damn fool." Respondent's version of the incident was that she did indeed slap Simmons, but gently on the mouth, to get him to eat the meal she had prepared. She demonstrated a very light slap with the palm of her hand on the lips. This evidence is deemed more credible than the often rambling and disjointed testimony of the two female residents of the ACLF.
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated December 22, 2009, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Division is the government licensing and regulatory agency with the responsibility and duty to investigate and prosecute persons holding licenses and registrations as real estate brokers and real estate broker corporations. See § 475.021, Fla. Stat. The Florida Real Estate Commission (“Commission”) has the authority to impose discipline on persons licensed pursuant to Chapter 475, Part I, Florida Statutes. See § 475.25, Fla. Stat. At the times material to this proceeding, Ms. Iverson was a real estate broker licensed in Florida, having been issued license numbered 3184122. Sanctum Stay Corporation was a corporation registered as a real estate broker in Florida, having been issued license numbered 1032989. Ms. Iverson operated as the qualifying broker and an officer of Sanctum Stay Corporation, which was also known at the time material to this proceeding as Equilect Capital, Inc. ("Equilect Capital"). In or about October 2008, Ms. Iverson, in her capacity as a real estate broker, reached a verbal agreement with Sharon Hendee whereby Ms. Iverson agreed to rent to Ms. Hendee a house at 2880 Northeast 9th Street, Pompano, Florida, from January 24, 2009, through February 7, 2009. Pursuant to the agreement, Ms. Hendee was to pay a $1,000.00 refundable deposit on the house, and she wrote a check dated October 24, 2008, to Equilect Capital in the amount of $1,471.81. On January 24, 2009, Ms. Hendee's bank records reflect a transaction in the amount of $3,246.09, payable to Equilect Capital, which was the final payment for the rental of the house at 2880 Northeast 9th Street, Pompano, Florida. In an electronic mail dated January 8, 2009, Ms. Iverson confirmed that she had received payment for the rental commencing January 24, 2009. Ms. Hendee and/or her relatives occupied the rental house during the agreed-upon period of time in January and February 2009. Ms. Hendee did not receive a refund of her $1,000.00 deposit from Ms. Iverson, and, in or about April 2009, she filed a complaint with the division. In an electronic mail exchange between Ms. Iverson and Ms. Hendee that took place on May 14, 2009, Ms. Iverson stated that she had set up a list of people she needed to pay, and she included the list in the electronic mail. Ms. Hendee’s name was on the list, followed by the notation “$1,000.00 stay 24 Jan - 7 Feb 2009.”2 Ms. Iverson asked Ms. Hendee for her address as part of the electronic mail exchange on May 14, 2009, explaining that she needed Ms. Hendee’s mailing address so she could send Ms. Hendee a check. Ms. Hendee provided Ms. Iverson with her address by electronic mail on May 14, 2009. As of the final hearing, Ms. Hendee had not received a refund of her $1,000.00 deposit. As part of the Division’s investigation of Ms. Hendee’s complaint, Krystal Cordo, the Division’s investigator, met with Ms. Iverson and her husband on September 4, 2009, at the offices of the Sanctum Stay Corporation. At the meeting, Ms. Iverson told Ms. Cordo that she had opened an escrow account for one month to handle “this specific transaction” but that the account was closed at the time of the September 4, 2009, meeting. Ms. Iverson also told Ms. Cordo that she “did not have copies of her bank/reconciliation statements or a copy of the transaction file.”3 Ms. Cordo asked Ms. Iverson to provide her with a statement showing that the account was closed. During the meeting on September 4, 2009, Ms. Iverson signed a Division form entitled “Office Inspection & Escrow/Trust Account Audit Form,” on which Ms. Cordo noted: “Broker will make available her bank statements/reconciliation for when she did hold escrow no later than 9-11-09.”4 Ms. Cordo made a follow-up visit to the offices of Sanctum Stay Corporation on September 11, 2009, to obtain the requested documents. Ms. Iverson’s husband was present and advised Ms. Cordo that Ms. Iverson was not in the office. Ms. Iverson had not, at the time of the final hearing, provided the requested bank statements or reconciliations to Ms. Cordo, despite telephone calls Ms. Cordo made to Ms. Iverson, which Ms. Iverson did not return, and electronic mail messages sent to Ms. Cordo by Ms. Iverson. Neither Ms. Iverson nor Sanctum Stay Corporation has previously been the subject of a disciplinary action by the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order imposing on Linda Johanna Iverson and Sanctum Stay Corporation an administrative fine in the amount of $4,000.00 and suspending the brokerage licenses of Linda Johanna Iverson and Sanctum Stay Corporation for a period of five years. DONE AND ENTERED this 27th day of September, 2010, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 27th day of September, 2010.
The Issue The issue in this case is whether Respondents negotiated the sale of real property and collected a commission on said sale without the requisite real estate license issued by the State of Florida.
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty of prosecuting Administrative Complaints filed against real estate practitioners pursuant to the laws of the State of Florida. Respondent Rene Larralde, Jr., is a citizen of the State of Florida. At no time relevant to this proceeding did Larralde hold a Florida-issued license as a real estate sales associate or real estate broker. Respondent Maxous, Inc., is a Florida for-profit corporation formed on August 10, 2004. Larralde is president and registered agent of Maxous. Respondent Glinda G. Hatfield has held licenses as a Florida real estate broker and a Florida real estate associate. As of the date of the incident relevant to this proceeding, Hatfield's real estate broker's license was in an inactive status. Hatfield had failed to meet one of the continuing education requirements for renewal of her license that year. She was not aware of that fact until notification by the state relevant to the issues in this proceeding. Upon receiving notice, Hatfield took the necessary measures to have her license re-instated to active status. Hatfield assisted Larralde in forming Maxous. It was Hatfield's responsibility, as the licensed real estate broker in the new entity, to make sure Maxous was duly registered with the state as a real estate broker. Hatfield went to the Melbourne Association of Realtors to register the business once it had been incorporated. Hatfield did not understand that the business also had to be registered through the Florida Real Estate Commission in Tallahassee. Not being aware of that requirement, Hatfield never registered Maxous with the state. Rather, she paid the fees associated with registration of the company with the local real estate association and made the erroneous presumption that the company could then operate as a licensed real estate broker in the state. On or about February 27, 2008, certain parties entered into a Contract for Sale and Purchase (the "Contract") of property located at 1033 June Drive, Melbourne, Florida (the "Property"). Maxous was designated as the listing broker in the Contract. On April 21, 2008, the sale of the Property closed, as evidenced by a HUD Settlement Statement. The Settlement Statement indicates a real estate commission in the amount of $5,964.18 for the sale. The Settlement Statement indicates $2,982.09 (one half of the commission) is to be paid to Maxous and the other half of the commission to be paid to Exit One Realty. Exit One Realty was the listing agent for the Property, but had not been made aware of the impending sale. As the sole listing agent, Exit One Realty would normally expect to receive the entire broker's commission at the time of closing. However, Exit One Realty was not even aware of the sale of the Property until it received its commission. It appears that Maxous, through the person of Larralde, held itself out as the listing broker and assumed ownership of the commission on the sale of the Property. Larralde did, however, designate Exit One Realty as another broker in the sale who was entitled to half of the commission. At the time of the transaction involving the Property, Maxous was not registered with the State of Florida as a real estate broker. Larralde was not licensed as a real estate sales associate. In order to consummate this sale (and others like it), Larralde had established Maxous. It was apparently Larralde's intent, although he did not appear at the final hearing, to use Hatfield's status as a licensed broker to legitimize Maxous' status as a brokerage firm. Hatfield was amenable to that arrangement. Hatfield was designated as the vice-president of Maxous when the company was formed. As previously noted, Hatfield went to the Melbourne Association of Realtors for the purpose of registering Maxous as a brokerage entity. Hatfield paid the necessary fees to the association for the registration of Maxous with the local real estate association, and, upon inquiry from that office, felt that she had done everything necessary to allow Maxous to operate as a broker. Thus, at the time of the aforementioned transaction, Maxous was not a legitimate broker in the State of Florida. Hatfield assumed she was the registered broker for Maxous; assumed Maxous was duly registered with the state; and assumed that her broker's license was current. In matter of fact, none of those assumptions proved true. Clearly Hatfield did not attempt to circumvent or avoid the requirements for real estate brokers. Rather, she was mistaken about what had to be done regarding registration with the Florida Real Estate Commission. She did not know that her license had been deemed inactive for failure to complete a continuing education class. Neither Larralde, nor anyone else testified at final hearing as to what their knowledge was concerning these matters. It cannot be determined whether Larralde knew Maxous was not a registered brokerage firm and that the transaction relating to the Property was improper. However, Larralde did share the commission with Exit One Realty. It is clear from Hatfield's testimony at final hearing that she did not intend to defraud anyone or to do anything illegal or improper. However, her actions were improper nonetheless. It is not clear from the testimony whether Hatfield received any of the commission provided to Larralde. However, to her credit, Hatfield, upon learning of the violations set forth above, unilaterally ceased doing business as a real estate agent or broker. She acknowledged her mistake and took immediate action to make sure she would not make any further mistakes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Real Estate: (1) imposing a fine in the amount of $5,000 against Respondent, Rene Larralde; (2) imposing a fine of $5,000 against Respondent, Maxous, Inc; (3) imposing a fine of $250 against Respondent, Glinda G. Hatfield; (4) requiring Hatfield to pay the costs of the investigation in this matter; and (5) suspending Hatfield's real estate license for a period of one year. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Amy Toman, Hearing Officer Office of the General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-Suite 801 North Orlando, Florida 32801 Joseph G. Colombo, Esquire 2351 West Eau Gallie Boulevard, Suite 1 Melbourne, Florida 32935
