Findings Of Fact Petitioner filed his application for licensure as a real estate salesman on February 23, 1989. Question number 7 of the application asked Petitioner whether he had ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. Petitioner answered Question number 7 affirmatively. Respondent presented no evidence of any other basis for its refusal of Petitioner's licensure. Petitioner entered a no-contest plea to a charge of credit card forgery, uttering a forged instrument (credit card), fraudulent use of a credit card, and petit theft involving an incident in December, 1987. Adjudication was withheld and Petitioner was placed on probation for 18 months on February 16, 1988. One of the conditions of probation was that Petitioner would neither possess, carry, nor own any weapon or firearm without the Probation Supervisor's consent. Petitioner's probation was revoked on May 4, 1988. Petitioner was found guilty of being in possession of a firearm, on or about April 28, 1988, without his Probation Supervisor's consent. Petitioner was placed on one year Community Control. Petitioner has no convictions or arrests prior to or subsequent to the original offense and revocation of probation. The uncontroverted evidence established that subsequent to the revocation of his probation, Petitioner consistently demonstrated good conduct and reputation. Petitioner was released from probation eight months in advance of schedule pursuant to the recommendation of his Probation Supervisor. Petitioner worked during the day, attended a review course for his real estate salesman examination at night, and successfully completed the review course. The uncontroverted evidence further established Petitioner's subsequent good conduct and reputation during his employment over the past year as a furniture salesman for a national furniture store. Petitioner has been instrumental in handling all of the business bank deposits and payroll. Petitioner has been responsible for opening and closing the store and has been entrusted with all keys and alarm combinations. During his employment, Petitioner has demonstrated honesty, diligence, and trustworthiness. Finally, the uncontroverted evidence established that Petitioner has a reputation for trustworthiness and good character with his Probation Supervisor and among social, civic, and business leaders. See Respondent's Composite Exhibit 1.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a real estate salesman be accepted. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of April 1990. DANIEL MANRY 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 17th day of April 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6251 Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2 Accepted in finding 1 3 and 4 Accepted in finding 2 and 7 Accepted in part in finding 3 Remainder rejected as immaterial. Accepted in finding 4 Accepted in findings 4 and 5 Accepted in finding 5 Accepted in finding 1 Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 2 Accepted in finding 1 3 and 4 Accepted in finding 2 Accepted in finding 3 Included in Preliminary Statement Rejected as immaterial COPIES FURNISHED: Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth E. Easley General Counsel 1940 North Monroe Street Tallahassee, Florida 32399-0792 Manuel Oliver Assistant Attorney General Office of the Attorney General 400 West Robinson Street, Suite 212 Orlando, Florida 32801 Paul A. Sack, Esquire Glendale Federal Building, Suite 630 2121 Ponce de Leon Boulevard Coral Gables, Florida 33134
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. During times material herein, Respondent, James W. Weiss, was a registered real estate broker and holds License No. 0094382. During March, 1980, Respondent, a real estate broker who purchases numerous properties under distress sales, learned that Frank and Evelyn Harvey were behind on mortgage payments on their home which is located at 11031 Duval Road, Jacksonville, Florida. Respondent offered to protect the Harvey's equity by taking their residence in trade for a home Respondent owned on Monaco Street in Jacksonville. Respondent considered the value of the Monaco Street residence to be approximately $25,000.00 and it had a mortgage balance of approximately $13,000.00 outstanding. Respondent and the Harvey's entered into an agreement which was prepared by Respondent's attorney and executed by the parties on March 27, 1980. (Petitioner's Exhibit No. 1) Under the terms of the agreement, the Harvey's were to exchange their property for the property owned by the Respondent located on Monaco Street. Additionally, Respondent received an option to purchase a lot which abutted the rear of the lot on which the Harvey's home was located. Subsequent to execution of the agreement, Evelyn Harvey, who was then divorced from Frank Harvey, examined the property owned by Respondent located on Monaco Street and decided that that house was not worth Respondent's stated value of $25,000.00 and that it required numerous repairs which she could not afford. After Ms. Harvey expressed her dissatisfaction to Respondent about the Monaco Street residence, Respondent agreed that he would pay the Harvey's an equity balance of approximately 10,000.00 instead of transferring the possession of the Monaco Street residence. 1/ During these discussions, Ms. Harvey represented to Respondent, and the evidence contained in the written agreements reflect that, according to Ms. Harvey, the outstanding mortgage balance remaining on the property the Harveys owned did not exceed $21,000.00. (See Petitioner's Exhibit 1) On March 31, 1980, Respondent prepared a Warranty Deed whereunder the Harveys transferred their residence to the Respondent. Additionally, Respondent prepared an option agreement for the purchase of the rear lot which abutted the Harveys' residence. (Petitioner's Exhibit 2 and Respondent's Exhibit 1) On March 31, 1980, Respondent ordered a title insurance binder from Chicago Title Insurance Company. Evidence reveals that when the Harveys transferred the Duval Road residence to Respondent, there was an outstanding mortgage dated June 27, 1973, from Frank and Evelyn Harvey to DAC Corporation which had an approximate balance of $21,400.00. Additionally, evidence revealed that the real property taxes for 1979 were due in the gross amount of $226.92. Evidence also indicates that there was an outstanding mortgage from the Harveys to City Consumer Services of Florida, Inc., in the approximate balance of $12,000.00. Finally, there was an unsatisfied final judgment filed July 30, 1974, from the Harveys in favor of M. A. Baer and Wayne Thompson d/b/a Physician's Service Bureau in the amount of $92.50 plus costs. Armed with these facts, Respondent confronted Ms. Harvey about these matters and the upshot of this confrontation is that Respondent advised Ms. Harvey that he was only interested in proceeding with the transaction if Ms. Harvey satisfied the outstanding delinquencies which exceeded $21,000.00, as agreed upon. Ms. Harvey indicated that she was unable to satisfy these outstanding obligations, whereupon Respondent offered to satisfy these obligations and pay Ms. Harvey any outstanding amounts which represented the difference in their earlier agreement. Respondent indicated to Ms. Harvey that the benefit to her in such a transaction would be that her credit history would not be adversely affected by a foreclosure proceeding which was threatened by DAC Corporation should the outstanding delinquencies not be satisfied by April 1, 1980. (See letter dated March 25, 1980, from DAC Corporation received as Respondent's Exhibit 9) Respondent, having determined that the parties had reached an agreement, as reflected by the Warranty Deed executed by the parties on March 31, 1980, proceeded to pay the delinquent mortgage payments and back taxes on the subject property and recorded the Warranty Deed. (See Petitioner's Exhibit 2 and Respondent's Exhibits 11 through 13) On July 27, 1980, Respondent obtained a purchase contract from Arthur and Marilyn Hopkins. As a result of that purchase contract from the Hopkins, the transaction closed on September 12, 1980, and two Warranty Deeds transferring the property from the Harveys to Respondent and from Respondent to the Hopkins were recorded on September 17, 1980. The Harveys and Hopkins, along with Respondent, were present at the subject closing. At the end of the closing, Ms. Harvey inquired of Respondent of the outstanding monies due her, whereupon Respondent told her that he would immediately remit to her monies due if she would follow him to his office. At Respondent's office, Ms. Harvey was given three checks for the outstanding monies due her plus a check for certain pool and lawn equipment. (Respondent's Exhibits 3, 4, 5, 6 and 7) While the Administrative Complaint alleges that the Respondent failed to nay the Harvey's approximately $10,000.00 as provided in an agreement between Respondent and the Harveys, the evidence revealed otherwise. In this regard, under the first written agreement entered between the parties, the Harveys represented that the outstanding mortgage from their residence approximated $21,000.00 whereas the outstanding mortgages due were in excess of $30,000.00. Evidence also reveals that Respondent indicated his willingness to proceed with the subject transaction if, and only if, the Harveys satisfied the outstanding obligations which represented amounts in excess of the $21,000.00. The Harveys were either unwilling or unable to satisfy these obligations. Noteworthy is the fact that Respondent, after learning of these outstanding obligations in excess of the claimed $21,000.00 mortgage balance by the Harveys, obtained a warranty deed to protect the monies which he found it necessary to expend to prevent the Harveys' residence from foreclosure proceedings. (See Warranty Deed dated and recorded from the Harveys to Respondent on March 31, 1980) It was also noted and the evidence reflects that while the Harveys contend that there was an agreement evidencing the fact that Respondent promised to pay Ms. Harvey approximately $10,000.00, no such agreement was produced and Petitioner amended the Administrative Complaint to reflect that there was no such agreement but rather that there were ongoing discussions in this regard. In this connection, the evidence tends to support Respondent's version which is in keeping with other documentary evidence and agreements and his credible testimony which was supportive of other record evidence. That being so, to the extent that Ms. Harvey's testimony differs from testimony offered by Respondent in these proceedings, Respondent's testimony is considered more credible and Ms. Harvey's testimony, to the extent that it differs from testimony offered by Respondent, is not credited. (Tr. pp. 39, 43, 44, 47 and 48) Ms. Harvey admits that she was "upset" about the transactions and could not remember the specifics of the various documents which she entered. Finally, an examination of the affidavit given by Ms. Harvey to Investigator Robert Maxwell on January 19, 1981, reflects that she told Respondent at the closing on September 12, 1980, that she would not sign any document unless she was paid before signing. (Page 2 of Respondent's Composite Exhibit No. 2) The evidence adduced during the hearing from witnesses Beardsley, Hopkins and Respondent, fails to support Ms. Harvey's claim in this regard.
Findings Of Fact Arthur Steinhardt, on September 27, 1972; July 5, 1973; and November 17, 1975 applied to take the examination given to applicants for registration as real estate salesman by the FREC. All of these applications were denied on grounds that applicant had failed to give complete answers to questions on the application and had failed to show that he met the statutory qualifications of honesty, truthfulness, trustworthiness and good character. At the instant proceeding the FREC's attorney stipulated that the giving of incomplete answers on the application was no longer an issue and that the FREC had been fully apprised of the applicant's past record of conviction. Applicant, who is presently 59 years old, was convicted in 1969 of grand larceny and uttering a forgery, and sentenced to prison for a term of six months to three years. He was released after serving nineteen months and applied for a pardon on May 19, 1971. On June 15, 1972 he was granted a pardon and his civil rights were restored. Since his release from prison he has worked as office manager for his sister who is a licensed mortgage broker and real estate broker. Applicant filed for bankruptcy and was discharged by the referee in bankruptcy in 1973. For the past six years he has had no further brushes with the law. The conviction for which applicant was imprisoned involved a family dispute and the ownership of family assets is presently in litigation with applicant and his sister attempting to recover estate assets from a brother. One witness, a member of the Florida Bar, testified to the good character and business reputation of the Applicant. One affidavit of good character has been received as late-filed Exhibit 2.
Findings Of Fact The pleadings in this case, Petitioner's Notice of Intention to Suspend" and Respondent's "Petition for Formal Hearing" establish the following uncontroverted facts: William D. McCaffrey is a mortgage solicitor holding license number HK0007207. The Department of Banking and Finance is charged with the responsibility and duty of administering and enforcing the provisions of the Mortgage Brokerage Act, including the duty to suspend the license of those persons registered under the act for violations of the terms therein. William D. McCaffrey has been convicted of a federal offense and is presently in federal custody at the Federal Correctional Institute in Montgomery, Alabama. On November 13, 1985, Respondent pled guilty to "Interstate transportation of fraudulently obtained credit cards, in violation of title 15 U.S. Code, Section 1644(b) as charged in count 6 of the Indictment". (Petitioner's Exhibit #2) Count 6 of the indictment provides: Count Six On or about December 13, 1982, defendants WILLIAM D. McCAFFREY and WILLIAM BARTRAM III did knowingly, with unlawful and fraud- ulent intent, transport and cause to be transported in interstate commerce from Clarkston, Georgia, by way of Nevada, to the District of Arizona, a fraudulently obtained American Express Credit Card in the name of William Smith, knowing said credit card to have been fraudulently obtained. All in violation of Title IS, United States Code, Section 1644(b), and Title 18, United States Code, Section 2. (Petitioner's Exhibit #1) The U.S. District Court for the District of Arizona in case #CR 85-53 PHX adjudged William D. McCaffrey guilty as charged and convicted, sentenced him to imprisonment for 5 years, and ordered that he pay a fine of $10,000 and make restitution to American Express in the amount of $5,481.27. (Petitioner's Exhibit #2 Judgement and Probation/Commitment Order)
Recommendation Based upon the foregoing it is recommended that a final order be entered suspending Respondent's mortgage solicitor's license for a period of two years. DONE AND ORDERED this 23rd day of October 1986, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986. COPIES FURNISHED: Robert K. Good, Esquire Office of the Comptroller 400 West Robinson Street Orlando, Florida 32801 Clyde Taylor, Jr., Esquire 1105 Hays Street Tallahassee, Florida 32301
The Issue Whether Petitioner is qualified for licensure as a real estate salesperson.
Findings Of Fact On or about November 8, 1995, Petitioner filed an application for licensure as a real estate salesperson. Question 9 of the application asked about the applicant's criminal history. In response to this question, Petitioner answered in the affirmative and stated the following: On May 24, 1995 I pleaded guilty to a misdemeanor offense, possession of a forged instrument in the third degree... . Question 13 of the application inquired as to whether the applicant had ever resigned from a regulated profession. Petitioner answered this question in the affirmative and stated: On October 6, 1995, as a condition of my sentence in the criminal matter...I executed an Affidavit of Resignation from the Bar of the State of New York. Petitioner testified at hearing that the incident giving rise to misdemeanor offense to which he pleaded guilty involved a divorce matter he was handling for a client. While practicing law in the State of New York, Petitioner was retained to handle what he initially believed was an uncontested divorce. When it became apparent that the divorce was being contested, Petitioner attempted to withdraw from the case, but at the client's insistence never did so. During the ensuing months, the divorce matter was not resolved by Petitioner. Nevertheless, after being repeatedly contacted by the client regarding the status of the case, Petitioner gave the client what purported to be a copy of his divorce decree. According to Petitioner, he conformed the document and knew no decree had been signed. The conformed document was never filed with the court. Petitioner's actions led his client to believe that the client was divorced when, in fact, he was not divorced. Petitioner was forthright in revealing his conviction and resignation from the New York Bar and acknowledged that his action was "a terrible mistake in judgment." While he admitted "there's no excuse for what I did," Petitioner attributed the incident to the stress in his life at the time caused by a myriad of circumstances. Among these circumstances was the illness and subsequent death of Petitioner's only law partner in his two-attorney law practice. Because of this, Petitioner's caseload increased significantly causing him to feel "overwhelmed." During this time period, Petitioner was also dealing with family problems related to the serious health problems of his parents. Petitioner pled guilty to a misdemeanor offense, possession of a forged instrument, and was convicted of the same. As a result thereof, on October 6, 1995, Petitioner was sentenced to three years probation. At the time of this hearing, Petitioner had served less than one year of his probationary period. Petitioner's probation will expire on October 5, 1998. At hearing, Petitioner presented numerous letters from family, friends, and business associates attesting to his good character. However, all the letters are based on these individuals' experiences and relationships with Petitioner prior to his October 1995 conviction. Petitioner appears remorseful about his prior conduct and has a sincere desire to be rehabilitated. However, Petitioner presented no evidence regarding his present character as reflected by his good conduct and reputation. Absent from the record is testimony from friends, relatives, business associates, employers, or church members regarding Petitioner's honesty, truthfulness, or trustworthiness subsequent to the date he pled guilty to possession of a forged instrument.
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 denying Petitioner's application for licensure as a real estate salesperson. DONE and ENTERED this 10th day of December, 1996, in Tallahassee, Leon County, Florida. CARLOYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-647 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1996. COPIES FURNISHED: Dean Alan Burton 10098 Dunkirk Road Spring Hill, Florida 34608 William N. Halpern Assistant Attorney General South Tower, Suite 107 400 West Robinson Street Orlando, Florida 32801 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Department, a state agency, initiated the underlying proceeding when the Cease and Desist Order was filed on February 20, 1990. Petitioner, CGFS, Inc., is a corporation which has its principal office in this state. At the time the action was initiated by the Department, the corporation had less than 25 full-time employees and a net worth of less than $2 million dollars. Petitioner DeBellonia is the sole shareholder in the subchapter S corporation and does not have an independent claim for attorney's fees and cost. A Final Order dismissing the Cease and Desist Order was entered in favor of the Petitioners DeBellonia and CGFS, Inc. on October 16, 1990. The time for seeking judicial review of that order has expired and the order has become final agency action as a matter of law. The underlying Cease and Desist Order directed to Mr. DeBellonia and CGFS, Inc. was based upon a complaint made by Ms. Connie Jones, a client of CGFS, Inc. who dealt with Mr. DeBellonia. Ms. Jones, who contacted the Department, told representatives of the agency that Mr. DeBellonia, as president of CGFS, Inc., had agreed to arrange a mortgage loan on her behalf which was to be secured by real estate in Dade City, Florida. During the time period in which Ms. Jones had the business meeting with DeBellonia, neither Mr. DeBellonia nor CGFS, Inc. were licensed as a mortgage broker or a mortgage brokerage business. If the business transaction had occurred as originally represented by Ms. Jones, both Mr. DeBellonia and CGFS, Inc. would have been in violation of the Mortgage Brokerage Act. Based upon the complaint initiated by Ms. Jones prior to the Department's filing of the Cease and Desist Order, the agency had reason to believe that Mr. DeBellonia and CGFS, Inc. were violating or about to violate the law by acting as a mortgage broker and mortgage brokerage business without the proper licenses. Mr. DeBellonia and CGFS, Inc. were able to reveal during the formal hearing process that Ms. Jones' impressions of what occurred during her meeting with Respondent DeBellonia were faulty. It was necessary, however, for the Hearing Officer to resolve the question of what weight should be given to Ms. Jones' testimony and what credibility assessment should be made to resolve the disputed issues of material facts involved in the case. The Department disputes portions of the application for attorney's fees and costs relating to time spent with a private investigator and the review of a title search. Based upon the attorney's testimony at hearing in which he gave the reasons for the use of the investigator and the title search, the 1.33 hours spent by him on these matters during his preparation of the case was reasonable and necessary. As there is no other dispute as to the reasonableness of the hours spent by Mr. Mone in defending the Petitioners, it is determined that the 11.65 hours he spent in defending CGFS, Inc. as to the Cease and Desist Order should be included in his fee charges. Although the Hearing Officer specifically finds that $300.00 an hour is a reasonable hourly rate for an attorney of Mr. Mone's experience when the matter pursued is a civil action, this case is an administrative proceeding. Based upon the affidavit of Burton Wiand, whose law practice includes civil trial litigation as well as administrative law proceedings, $150.00 per hour is a reasonable fee within the Pinellas County and Hillsborough County area for services similar to those reasonably required from Mr. Mone in these proceedings. Great weight is given to Mr. Wiand's affidavit, and $150.00 per hour is a reasonable fee in this case.
Findings Of Fact The Petitioner, James A. Detzel, age 40, was born in Miami, Florida, and he lived there until sometime during his junior high school years when he went into the United States Marine Corps. He subsequently earned and received a GED diploma from high school. At age 19 the Petitioner began to get into trouble with the law. He was arrested and convicted in Atlanta, Georgia, for armed robbery in 1960, and served a two year sentence. Between this occurrence and the year 1968 he was arrested and convicted three more times, for robbery, escape while serving the robbery sentence, and for possession of burglary tools. In 1968 the Petitioner was arrested for breaking and entering-grand larceny in Dade County, Florida, and sentenced to 15 years. He served nine and one-half years, and received a conditional release in 1976. A conditional release is the same as parole, but the Petitioner had previously violated parole and was not again eligible to receive parole. Thus, he received the conditional release. In October of 1981, the Petitioner's conditional release was terminated, after it had been satisfactorily completed. During the years, the Petitioner has also been arrested and convicted of breaking and entering-petit larceny, receiving stolen property, and larceny of an automobile. At the present time, however, he has paid his debts to society on all of these charges. Nevertheless, the Petitioner has not yet had his civil rights restored, although he is apparently eligible to apply therefor. The Petitioner contends that he has been rehabilitated, and thus is now eligible to be licensed as a repossessor. He is married and has two children. He is buying a home in Tampa. He has been steadily employed since 1976, and is now working as repossessor in Tampa. His employers have found him to be reliable and trustworthy employee. The Petitioner has not been in any trouble with the law since 1968, and he has a satisfactory work record since his release from prison. The Petitioner has been honest and loving with his wife and family. He is a changed man now, his wife contends, and is a good family provider. The Petitioner's Parole Officer confirms that his life seems to have become stabilized now.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of James A. Detzel for a Class E (Repossessor) License, be denied. THIS RECOMMENDED ORDER entered on this 5 day of February, 1982. 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 5th day of February, 1982. COPIES FURNISHED: Richard S. Blunt, Esquire 112 South Armenia Avenue Tampa, Florida 33609 James V. Antista, Esquire Room 106 Gray Building Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF STATE JAMES A. DETZEL, Petitioner, vs. DOAH CASE NO. 81-2847S DEPARTMENT OF STATE, DIVISION OF LICENSING, Respondent. /
The Issue Whether the Respondent should be denied a mortgage solicitor's license under Chapter 494, Florida Statutes.
Findings Of Fact Mr. Steinhardt, the Respondent, requested an application for registration as mortgage solicitor and made application on the proper form. The Department of Banking and Finance denied the application for issuance of a mortgage solicitor license and as grounds for said denial stated: Arthur Steinhardt failed to attach to his application for registration as a mortgage solicitor, a signed, notarized statement of the charges and facts as to his arrest or indictment for a crime. Said omission is a violation of Section 494.05, Florida Statutes; Arthur Steinhardt failed to attach to his application for registration as a mortgage solicitor, a signed statement of the charges and facts as to why a license was denied, suspended or revoked. Said omission is a violation of Section 494.05(1)(g), Florida Statutes; On or about March 13, 1969, Arthur Steinhardt was convicted of uttering a forged Instrument and sentenced to six (6) months to three (3) years in prison. Said criminal conviction demonstrated fraudulent or dishonest dealings by Arthur Steinbardt. Said criminal conviction is a ground for denial of license pursuant to Section 494.05, Florida Statutes. The acts and conduct of Arthur Steinhardt in the foregoing three paragraphs demonstrates deficiencies in the qualities of honesty, truthfulness, integrity, and competency. Said qualities are an essential requirement for the issuance of a mortgage solicitor license. Since these qualities are necessary in negotiating financial transactions involving primary and subordinate mortgages, the paramount interest of the public are best served by denial of the application of Arthur Steinhardt based upon the foregoing grounds. The Respondent requested a public hearing and at this hearing showed: That he had responded affirmatively to the question on the form "Have you eyer been arrested or indicted for a crime?" Admitted that he had failed to attach a complete notarized statement of the charges and facts together with the name and location of the court in which the proceedings were had or were pending, but showed that he had sent in a notarized statement as required stating that he had sent these in when he had been told to send them in. Mr. Steinhardt, the Respondent, admitted that he had failed to attach to his application notarized statements as required in questions numbers 5 and 9 on the application form, stating that he had overlooked said requirements although he had answered affirmatively to the questions: Question 5, "Have you ever been arrested, or indicted for crime?" Question 9, "Has your license of any kind ever been denied, suspended or revoked?" Respondent admitted that he had been convicted of uttering a forgery in Case No. 65-9450, State of Florida v. M. A. Steinhardt. The Respondent did not contest the charges of the Department of Banking and Finance, however, he contended: that the trouble he had been involved in for which he had been convicted of a crime and had served time arose purely from family problems; that the fingerprint card of the FBI showed that the only arrest he had been involved in was in regard to this family problem and one vehicular accident; that he was known for his honesty and integrity; and that he had been rehabilitated since his conviction of a crime. The Department of Banking and Finance contends: that its chief purpose as required by the legislature is to review an applicants background and make a determination to protect the public; that upon such investigation the determination was made that the public would not be best protected by granting a license to the Respondent. The Hearing Officer further finds: That Respondent's application for registration was ultimately completed properly, but not until the Department had sent out the notice of denial; The Respondent did not "overlook" the requirements of question 5 and question 9, but intentionally failed to properly complete the application by failing to attach notarized statements as to his arrest and his indictment for crime and the denial of a license. The license of applicant should have been denied.
Recommendation Deny the application. DONE and ORDERED this 11th day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Philip J. Snyderburn, Esquire General Counsel Office of the Comptroller The Capitol Tallahassee, Florida 32304 Arthur Steinhardt Adirolf Mortgage Enterprises, Inc. 8134 N.W. 103 Street Hialeah, Florida 33016 Joseph M. Ehrlich, Deputy Director Division of Finance 335 Carlton Building Tallahassee, Florida 32304
The Issue Whether Petitioner is of "good moral character" as required by section 326.004(6)(a), Florida Statutes, and Florida Administrative Code Rule 61B-60.003, such that he is entitled to issuance of a yacht salesperson license.
Findings Of Fact The Parties Petitioner is an applicant for a yacht salesperson license, pursuant to the Yacht and Ship Brokers Act, chapter 326, Florida Statutes, and Florida Administrative Code Chapter 61B-60. He is 22 years old. Respondent is the state agency charged under chapter 326 with licensing yacht salespersons. The Evidence Adduced at Hearing On October 6, 2015, Petitioner submitted to Respondent a complete application for a yacht salesperson license. On January 6, 2016, Respondent sent Petitioner a Notice of Intent to Deny License Application ("Notice of Intent"). The Notice of Intent stated that Respondent was denying Petitioner's application on the basis that he did "not [provide] satisfactory proof that he is of good moral character." Respondent based this decision on Petitioner's disclosure, in his criminal history report required as part of the application, that he previously had pled nolo contendere to a felony charge of aggravated assault with a deadly weapon without intent to kill, a third degree felony under section 784.021, Florida Statutes. This charge resulted from Petitioner having waved a firearm outside of his vehicle after being involved in a traffic incident with another driver. Petitioner committed the offense on November 10, 2012, when he was 18 years old. The court withheld adjudication of guilt on the charged offense. On January 9, 2014, Petitioner was sentenced, as a youthful offender, to 120 days in jail and three years' probation without the possibility of early termination. Petitioner completed his jail sentence in April 2014, and is in the process of completing his probation sentence, which will terminate in or about January 2017. Upon sentencing, Petitioner was not allowed to leave the tri-county area without obtaining a permit and was required to report once a month to his probation officer. However, because Petitioner had served his jail sentence and had fully complied with the conditions of his probation over a period of more than two years, in March 2016, the circuit court judge who presided over his criminal case converted his probation to not-reporting administrative probation. This has enabled Petitioner to engage in cross- country flight sessions necessary to complete his commercial and instrument flight training, discussed in greater detail below. Subsequent to his commission of the offense but before sentencing, Petitioner accepted the help of Dr. Anthony M. Castro, a practicing clinical psychologist and assistant professor of clinical psychiatry at the University of Miami's Miller School of Medicine. Petitioner has been consistently involved in treatment sessions with Dr. Castro since he began seeing him over two years ago. Petitioner continued to correspond with Dr. Castro via mail while he was serving his jail sentence, and continued his in-person counseling sessions immediately following his release from jail. Over the course of his treatment, Petitioner has attended sessions with Dr. Castro on a bi-weekly to monthly basis, has continued to respond well to the counseling, and has remained compliant with all of Dr. Castro's recommendations. The evidence shows that Petitioner has experienced significant personal growth as a result of the counseling, and that he exhibits more effective problem-solving skills and better manages his behavior and emotional responses than he did before the counseling. Since April 2015, Petitioner has taken helicopter flight lessons.2/ He is instructed by Helen Brazier, an instructor and assistant chief for helicopters at Pelican Flight Training in Pembroke Pines. Petitioner has obtained his private pilot's license and currently is training to receive his commercial and instrument licenses. At the hearing, Brazier credibly testified that possessing maturity, good judgment skills, sound ethical values, self-discipline, motivation, and dependability are essential to obtaining a private pilot's license. This is because being a pilot entails substantial responsibility, in that the pilot has others' lives in his or her hands. Brazier testified, persuasively, that Petitioner is "a very good student . . . and completed everything in minimum time, and with very good results." Brazier testified that she will recommend Petitioner for his commercial pilot license upon Petitioner's completion of the requisite coursework, based, among other things, on her positive evaluation of his moral character. In order to obtain a pilot's license, applicants must be determined by the Federal Aviation Administration ("FAA") to have good moral character, in addition to providing all required documentation and successfully completing flying examinations. Evaluation of an applicant's character begins with a recommendation from the flight instructor, but the FAA has the ultimate authority to accept or deny the applicant based on a review of the applicant's criminal history. The FAA found Petitioner to have good moral character, as evidenced by their approval of his private pilot license. Petitioner's progress in flight school and his display of personal growth over the past two years led the circuit court judge presiding over his criminal case to modify Petitioner's probation, thus enabling Petitioner to fly out of the tri-county area without obtaining a permit and not requiring him to continue to report monthly to his probation officer. At the hearing, Petitioner credibly explained the circumstances under which he committed the offense. Petitioner had been frustrated by several unfortunate events in his life that culminated in the road rage incident that resulted in his felony charge. Petitioner testified that a motorcycle incident3/ and the decline of his profits at work increased his overall frustration prior to his poor decision to wave a firearm outside of his vehicle. He explained, persuasively, that it was more an "ignorant" act than one of malice, and that it was more of an act of "not knowing any better" than one of bad moral character. He characterized the consequences of his actions as a "wake-up call." He expressed regret and remorse for his behavior in committing the offense. Petitioner testified, credibly and persuasively, that through his counseling sessions with Dr. Castro, he has learned to be patient, to "wait for the dust to settle" before acting, and not to overreact to circumstances and situations. Petitioner currently is employed full-time as a production manager at Pro Marine, a boat-building company. His responsibilities entail supervising the construction process for each vessel and consigning completed vessels to clients. The evidence establishes that apart from the matter discussed above, Petitioner does not have any other criminal history. There is no evidence in the record indicating that Petitioner has ever engaged in any fraudulent conduct or that he is in any manner dishonest.4/ Chelisa Kirkland, supervisor of Respondent's Yacht and Ship Broker's Section, testified regarding Respondent's proposed denial of Petitioner's yacht salesperson license. In evaluating Petitioner's application for licensure, Respondent applied rule 61B-60.003. Kirkland testified that Respondent's decision to deny Petitioner's license was based on his criminal history as disclosed in his application. She noted that Petitioner did not submit any information in his application regarding his rehabilitation, and that had such information been submitted, Respondent would have considered it in determining whether he possessed good moral character for purposes of granting or denying his application for a yacht salesperson license. Respondent did not present any evidence at the final hearing countering or rebutting Petitioner's evidence of his rehabilitation that was presented at the final hearing. Findings of Ultimate Fact Upon full consideration of the competent substantial evidence in the record, it is determined that Petitioner has demonstrated, by a preponderance of the evidence, that he is rehabilitated from his prior criminal offense such that he possesses good moral character for purposes of being entitled to issuance of a yacht salesperson license under chapter 326 and rule 61B-60.003. Petitioner has been honest and forthcoming regarding his criminal offense. As noted above, he fully disclosed his criminal history in his application and, at the hearing, acknowledged that his conduct was inexcusable and expressed remorse at having committed the offense. Petitioner showed, by credible and compelling evidence presented at the final hearing, that he recognized his anger management issues, and he took the initiative to turn his life around by voluntarily obtaining the assistance of Dr. Castro for mental health counseling. The evidence establishes that Petitioner has learned effective strategies and appropriate behaviors for dealing with stressful situations. The evidence further shows that he likely will continue to improve as he works toward and meets his personal and professional goals. Petitioner has shown that he understands that the behavior he exhibited when he was 18 years old that led to his criminal record is unacceptable. Petitioner has further shown good moral character through his actions involved in obtaining his private pilot license and by receiving positive evaluations regarding his moral character from the FAA. Petitioner's and Brazier's credible and persuasive testimony establish that Petitioner possesses the sound judgment, strong ethical values, maturity, focus, mental and behavioral stability, and self-discipline that are essential to demonstrating rehabilitation and establishing that he possesses good moral character. For these reasons, it is determined that Petitioner has shown, by a preponderance of the competent substantial evidence in the record, that he is rehabilitated such that he possesses good moral character and, thus, is entitled to issuance of a yacht salesperson license under chapter 326 and rule 61B-60.003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation issue a final order approving Petitioner's application for a yacht salesperson license. DONE AND ENTERED this 18th day of July, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 18th day of July, 2016.
