Findings Of Fact On October 14, 1988, shortly before 9:00 a.m., Sheriff Deputy William Emral of the Monroe County Sheriff's Office was notified by radio that the Sheriff's Office dispatcher had received an anonymous telephone call advising that two white males were loading what appeared to be narcotics into a white four-door Cadillac, with Florida license plate number 367-ZGX. The caller indicated that the Cadillac was headed northbound on the highway from Lower Matecumbe Key. Deputy Emral then took up a stationary position at mile marker 84 and began watching the northbound traffic. At about 9:05 a.m., he observed the Cadillac described by the anonymous caller. Deputy Emral began to follow the subject Cadillac northbound. He followed the Cadillac for approximately one mile and then activated his emergency lights and pulled the Cadillac over. From the time Deputy Emral first saw the subject Cadillac until the time he pulled the Cadillac over, he did not observe anything about the car or the driver that would have caused him to stop the Cadillac. Had it not been for the information provided by the anonymous caller, Deputy Emral would not have stopped the subject Cadillac. The Respondent, Mark Alfred Herre, was driving the Cadillac at the time Deputy Emral pulled it over. Mr. Herre did not flee and obeyed the directions given to him by Deputy Emral. He produced his driver's license which showed his name as Mark Alfred Herre. The car was rented and, when requested, he produced the rental contract showing that it had been rented by another individual. Deputy Emral reported this information to his base and to his superior, Captain Wilkinson, who later arrived at the scene. Deputy Emral observed two bags, one green and one gray. These were soft sided bags and appeared to be stuffed between the rear and front seats of the rented car, on both the driver and passenger sides. They were relative large, approximately three feet by four feet in size. The rental contract produced by Mr. Herre indicated that the vehicle was rented by a Maryland resident named Robert E. Lee. Mr. Herre could produce no authorization from Mr. Lee that he was entitled to use the vehicle nor could he produce the name of someone who could confirm he was authorized to be driving the subject vehicle. At about this time, Captain Wilkinson arrived at the scene as backup. At this point, Mr. Herre was not suspected of a crime and continued to answer questions from the Deputy. He stated that the bags in the car contained diving gear. Deputy Emral is a certified diver and the story seemed suspicious and inconsistent with the Deputy's previous diving experiences. Mr. Herre did not ask any questions or make other inquiries as to why he was stopped. Deputy Emral did explain that an anonymous tip was received and discussed this information with the Petitioner. At this point, Deputy Emral and Captain Wilkinson conferred and because of the information received by the anonymous tip to the Sheriff's Office and the inability of the Petitioner to prove he had authorization to be driving the rented vehicle, they decided that the vehicle should be taken into custody. In preparation for taking a vehicle into custody, an inventory of the vehicle is made as a standard procedure. Mr. Herre was not placed under arrest at this time. Mr. Herre was asked for, but declined to give, permission for the Deputy to search the vehicle. The vehicle was then searched and it was determined that the two bags in the passenger compartment contained bales of marijuana. Captain Wilkinson then took charge of the vehicle and drove it to the Sheriff's Office. Captain Wilkinson stated that even if no contraband were in the vehicle, he would probably have driven it to the substation to await confirmation that Mr. Herre was actually authorized to be in possession of the rented car and the same was not actually stolen. At the Sheriff's Office, the Cadillac was thoroughly searched and the car and its contents were photographed. Three bales of marijuana were recovered from the back seat and ten bales of marijuana were recovered from the trunk. Samples tested positive for marijuana. For purposes of this case, the parties have stipulated that the marijuana found in the subject Cadillac weighed a total of 300 pounds. On November 17, 1988, the Department issued a Notice Of Assessment And Jeopardy Findings to the Petitioner, Mr. Herre. The assessment was based on an estimated retail price for marijuana of $700.00 per pound times the stipulated 300 pounds, which comes to a total estimated retail value of $210,000.00. The tax, surcharge, and penalty assessed against Mr. Herre were as follows: 50% Tax $105,000.00 25% Surcharge 52,500.00 Additional penalty of 50% 78,750.00 Total Amount of assessment $236,250.00 Daily interest on the amount due is $51.78. The Notice of Assessment And Jeopardy Findings described above was properly and correctly prepared and notice of it was properly given to the Petitioner, Mr. Herre. On December 28, 1988, Mr. Herre was sentenced in Case No. 33-88-00446- CF-A to a period of five (5) years probation and to pay $5,000.00 in costs. The sentence in the aforementioned case was as a result of criminal charges arising from Petitioner's arrest for the conduct alleged in the Notice Of Assessment And Jeopardy Findings dated November 17, 1988.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Revenue issue a Final Order in this case concluding that the Petitioner, Mark Alfred Herre, is liable for taxes, surcharges, penalties, and interest pursuant to Section 212.0505, Florida Statutes (1988 Supp.), and assessing the amount of such liability at $236,250.00, plus interest at the rate of $51.78 per day since November 7, 1988. RECOMMENDED in Tallahassee, Leon County, Florida, this 18th day of March 1991. COPIES FURNISHED: Stephen J. Bronis, Esquire 1395 Coral Way Third Floor Miami, Florida 33145 MICHAEL M. PARRISH 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 18th day of March 1991. Mark T. Aliff, Esquire Assistant Attorney General Department of Legal Affairs The Capitol - Tax Section Tallahassee, Florida 32399-1050 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100 Vicki Weber General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated August 14, 1989; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of the administrative complaint, Respondent was registered or eligible for registration as a service warranty sales representative in this state. The Respondent is currently registered or is eligible to be registered in this state as a service warranty sales representative. Prior to November 22, 1988, Respondent was employed by Comfort Air Conditioning, Inc. (Comfort). Respondent was not an officer of that company and did not have an ownership interest in that company. Respondent was employed as the sales representative for Comfort. The Department authorized Comfort to transact business as a service warranty association on October 25, 1985. Comfort had renewed its qualification for the period June 2, 1988 through June 1, 1989. The application for state registration was executed by Respondent on June 29, 1988. On or about November 22, 1988, Comfort surrendered its license to sell service warranties in the State of Florida. The letter executed by Comfort's president, Herbert Bell, was received by the Department on November 28, 1988, which became the effective date of surrender. Subsequent to that date, Comfort was not authorized to sell service warranties. Sometime prior to November 22, 1988, Respondent had authorized the use of his signature on printed forms which were mailed by Comfort to its service warranty customers or to its potential customers. The purpose of the form, a contract, was to secure the renewal of existing service agreements or to obtain new customers. The term of the service contract was for a period of one year. On or about November 22, 1988, Respondent knew that Comfort was not authorized to sell service warranties. Respondent believed that Comfort was entitled to service the contracts that it had issued or renewed prior to that date. Comfort mailed several thousand contracts to customers prior to November 22, 1988. Respondent did not have a list of the persons to whom the contracts were mailed. Respondent did not attempt to contact the persons who received the Comfort contracts to advise them that Comfort had surrendered its license. On November 23, 1988, Irving Weintraub executed the Comfort contract for warranty service and remitted a check in the amount of $127.20 payable to Comfort for the services requested. This check was deposited to Comfort's account on November 30, 1988. Mr. Weintraub was not aware that Comfort had surrendered its license. The contract executed by Mr. Weintraub bore Respondent's signature and was to run for the period January 1 through December 31, 1989. Mr. Weintraub did not receive service from Comfort for that period. On December 1, 1988, Reva Cole remitted a check in the amount of $127.20 payable to Comfort in connection with her service warranty agreement. Her agreement was to run from December 1, 1988 through November 30, 1989. The contract bore Respondent's name. Mrs. Cole did not receive service from Comfort for the period of her service warranty. On December 1, 1988, Ruth Schwartz remitted a check in the amount of $127.20 payable to Comfort in connection with her service warranty agreement. Mrs. Schwartz' agreement was to run from December 2, 1988 through December 1, 1989. This agreement also bore Respondent's name. Mrs. Schwartz did not receive service from Comfort for that period. Each of the customers named in paragraphs 8, 9, and 10 resided in a development known as Quadomain IV. This condominium complex is located in Hollywood, Florida, and was one of Respondent's marketing areas. On or about November 8, 1988, Respondent sent letters to unit owners at Quadomain. This letter solicited their service warranty business on behalf of Comfort and included an application form together with a price listing. In December, 1988, Respondent became licensed as a sales representative for Florida Appliance Service Technicians, Inc. (FAST), a service warranty company. In February, 1989, FAST wrote to unit owners at Quadomain to solicit their service warranty business. That correspondence represented that Respondent had become associated with FAST on December 21, 1988, and that FAST had purchased Comfort's records and computer equipment. The letter provided: As an introductory and transition special, we are offering, that if you renew your annual contract with us NOW, (to take effect after your present COMFORT contract expires) we will provide you service AT NO CHARGE for the unexpired portion of your present COMFORT contract for the same price and conditions you presently enjoy, with no interruption of service to you. A GREAT SAVING. Subsequent to the letter from FAST, Mrs. Cole and Mrs. Schwartz purchased service warranties from FAST. Respondent's primary efforts were to assure that FAST obtained as many of Comfort's customers as possible.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Office of the Treasurer, Department of Insurance enter a final order imposing an administrative fine against Respondent in the amount of $600.00. DONE and ENTERED this 16 day of March, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of March, 1990. APPENDIX TO CASE NO. 89-5704 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 5 are accepted. Paragraphs 6 and 7 are rejected as contrary to the weight of the evidence. Respondent allowed the use of his signature on the printed forms; however, Respondent did not Personally solicit the contract or sell the contract as Suggested in the proposed findings. Paragraphs 8 through 10 are accepted. Paragraphs 11 and 12 are rejected as contrary to the weight of the evidence. See the comment 2. above. Paragraphs 13 through 16 are accepted. Paragraphs 17 and 18 are rejected as contrary to the weight of the evidence. See comment 2. above. Paragraphs 19 through 25 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Clyde W. Galloway, Jr. Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Jules Dwight Poiret 4163 Coral Springs Drive Fort Lauderdale, Florida 33065 Hon. Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact At all times relevant hereto Hendry Corporation held a Certificate of Qualification with DOT. Subsequent to January 1, 1978, Hendry Corporation pled guilty to an Information charging it with one count of violating 15 U.S.C. 1 in the United States District Court for the Southern District of Florida. This charge involved bid rigging with respect to a public contract.
The Issue The four count Administrative Complaint presents the following issues: Whether Mr. Burgess is guilty of concealment, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction in violation of Section 475.25(1)(b), Florida Statutes (2007).2 Whether Mr. Burgess operated as a broker without being the holder of a valid and current license as a broker in violation of Section 475.42(1)(a), Florida Statutes and, therefore, in violation of Section 475.25(1)(e), Florida Statutes. Whether Mr. Burgess failed to ensure his brokerage corporation had a current registration with the Department in violation of Florida Administrative Code Rule 61J2-5.019, and, therefore, in violation of Section 475.25(1), Florida Statutes. Whether Mr. Burgess is failed to account or deliver to the Bells any property or assets which has come into his hands and is not his property and which he is not entitled to retain, in violation of Section 475.25(1)(d)1, Florida Statutes.
Findings Of Fact Clear and convincing evidence establishes the following findings of fact: The parties agree that Mr. Burgess is now, and has been at all times material to this case, a Florida licensed real estate broker, holding license number 701456. Mr. Burgess's business relationship with Willis C. and Nell F. Bell (the Bells) began in 2002 and 2003. In those years he served as realtor in selling a duplex and buying a house located at 42 East Drive, North Miami Beach, Florida. Later the Bells paid Mr. Burgess $1,000 to assist with re-financing the house. In the following years, Mr. Burgess borrowed money from the Bells. The Bells knew little about real estate and the real estate business. They trusted and relied upon Mr. Burgess, and he knew that. Mr. Burgess entered into a contract with the Bells to sell a townhouse located at 648 Northeast Second Street, Homestead, Florida. The contract is titled “Exclusive Right of Sale Listing Agreement” and dated October 3, 2006. The contract identifies Mr. Burgess as an “Authorized Listing Associate or Broker.” It gives Mr. Burgess the exclusive right to sell the Bells’ property and obligated him to market and sell the property. The contract identifies the sale price as $310,000.00. The contract term is October 3, 2006 to April 3, 2007. The first sentence of the contract identifies the parties as the Bells (Sellers) and Mr. Burgess and World Realty (Brokers). Mr. Burgess signed it as “Authorized Listing Associate or Broker.” The signature area identifies the Brokerage Firm Name as Beachfront Realty, Inc. The Bells purchased the Homestead townhouse at Mr. Burgess’s urging. He convinced the Bells that buying the Homestead townhouse was a good real estate investment. Mr. Burgess also loaned the Bells $3,000 or $3,500 to help them purchase the property. Mr. Burgess did not succeed in finding buyers for the property. Mr. Burgess proposed to the Bells that they rent the property. He repeatedly offered to locate a tenant for them. For some time the Bells resisted the idea because of concerns about wear and tear and possible damage to a new townhouse. Finally they agreed. Mr. Burgess identified a tenant, Ms. Kenya Horne. He repeatedly told the Bells that Ms. Horne’s occupation and lease of the townhouse were dependent on approval to participate in a government rent support program. Mr. Burgess prepared and the Bells executed a lease with Ms. Horne for the period beginning October 8, 2007 and ending September 30, 2008. It provided for lease payments of $1,300.00 per month and a security deposit of $1,300.00. Mr. Burgess signed the lease as a witness. But the Bells told Mr. Burgess that they did not want Ms. Horne to take possession of the townhouse until they met and approved her. Mr. Burgess agreed. He repeatedly assured the Bells that he would not give Ms. Horne possession of the property until they had met and approved of her. Also Mr. Burgess repeatedly advised the Bells that Ms. Horne had not moved into the property because she could not obtain needed approval for rent assistance. These assurances were false. Despite his repeated assurances and statements, Mr. Burgess gave the tenant possession of the property. She lived there four or five months. During the same time period, while the tenant occupied the property, Mr. Burgess was telling the Bells that Ms. Horne had not obtained rent assistance and that renting the property to her was not going to work. He never told the Bells that the tenant moved in. And he never gave the Bells any rental payments or a deposit or made any arrangements for them to receive rental payments or a deposit. Uneasy about matters, the Bells traveled with Laurence Linder, a friend who was a real estate broker and insurance salesman, to Homestead to inspect the townhouse. They found that the property had been occupied and damaged. The damage included holes in several walls and fire damage in the kitchen. The stove and microwave were destroyed. The carpet was damaged. The Bells called Mr. Burgess from the townhouse and asked him how the property was. Mr. Burgess did not know that the Bells were at the townhouse. He told them it was in fine shape. When the Bells told Mr. Burgess that they were in the townhouse, he broke down and cried and admitted he had let somebody live there without telling them. When the Bells confronted Mr. Burgess with his actions and the damage, Mr. Burgess admitted deceiving the Bells about the tenant and her occupation of the townhouse. He promised to make restitution for the damage. Mr. Burgess signed a document titled Remedy of Rental. In it he agreed to do the following: Pay the City of Homestead’s final outstanding utility bill of $1,700 on or before March 14, 2008. Pay the Bells $4,600 to repair damage and an additional $2,000. Pay the Bells $5,200.00, the rental amount from October 2007 to January 2008, on or before April 11, 2008. Pay all amounts by certified or cashiers check. Mr. Burgess did not make any of the payments agreed to in the Remedy of Rental.
The Issue Whether Petitioner committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's Pari-Mutuel Wagering Occupational License?
Findings Of Fact Respondent submitted an application to Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division) on or about October 6, 2004, for a pari-mutuel wagering occupational license. The Division issued license number 7244830-1021, at Ocala Jai-Alai to Respondent. The nature of the license is an "owner's license" regarding owning racehorses. The Division is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes, and is responsible for licensing employees of pari-mutuel facilities. The following question appeared on Respondent's application for licensure: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. If an applicant answers "yes" to the above question, he or she is then required to complete form 0050-1. Respondent answered "yes" to the question and submitted form 0050-1 which contained the following explanation: Offense: Tax Evasion County: New York State: New York Penalty/ Disposition: Restitution misdemeanor-probation Date of offense: 1985 Have all sanctions been satisfied: yes Description: Sold property failed to pay tax liens-ultimately bank was money damaged so I had to pay restitution + serve 2y probation.[1/] In April 1995, the United State District Court for the Western District of New York issued a Judgment against Respondent finding him guilty of the crime of Bank Larceny and Theft. The Judgment lists the date the offense concluded as "03/03/89." Respondent was ordered to pay a special assessment of $25, restitution in the amount of $59,000 in installments to Empire of America, and was placed on one year probation. Steven Toner is an investigator for the Division. He was assigned Respondent's case and conducted an interview of Respondent. During cross-examination, Mr. Toner described part of the interview: Q: Did Mr. Paradelo in the course of your interview in my office indicate to you that the entire thing on his application for 1985 tax evasion, which he stated to you for the 1995 conviction, was all a single case? A: It was told to me that it was a run-on. Now, I'm not trying to be evasive, but it was a run-on between the criminal and the civil matters that were in the Landlord/Tenant things that were going, that were happening during that period of time. Respondent described the general chain of events leading up to the 1995 Judgment: in 1985, the Internal Revenue Service (IRS) filed a tax lien against Respondent; in 1988 Respondent applied to Empire of America Bank to refinance apartments which he owned; at the closing for the refinancing, the tax lien was revealed to the bank and to Respondent; the closing went forward; Respondent filed for bankruptcy in 1991; the bank failed and was taken over by a trust company; in 1991, the IRS commenced foreclosure proceedings based upon the 1985 tax lien; the matter was ultimately resolved in the criminal case which resulted in the Judgment wherein Respondent was required to pay $59,000 in restitution. Respondent considers the Judgment as a continuation of, and not distinct from, the tax lien matter that initially arose in the 1980's. The undersigned finds Respondent's testimony in this regard to be credible. The details of the events leading up to the 1995 judgment are important to the extent that they lend support to Respondent's position that he did not falsify the license application. Respondent answered "yes" to the question that he had a criminal conviction. He disclosed that he sold property, had to pay tax liens, had to pay restitution, and was placed on probation. While Respondent's description of his criminal conviction was imprecise, it was not false.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 10th day of July, 2006.
The Issue The issue presented is whether Respondent committed the offenses alleged in the administrative complaint, and, if so, what penalty should be imposed.
Findings Of Fact At all times material hereto, Respondent, Elliott H. Nachwalter was a licensed real estate salesman in the State of Florida, having been issued license number 0451805 by Petitioner, Florida Real Estate Commission. The last license issued to Mr. Nachwalter was as a salesman, c/o Expo Realty, Inc., 9445 Bird Road, #101, Miami, Florida 33165. License number 0451805 remains in involuntary inactive status. A person by the name of Elliott Nachwalter served as an officer of a Florida corporation, Liberty Metals Corporation, which was involuntarily dissolved on November 16, 1987. At the hearing, Petitioner asserted that the Elliott Nachwalter of Liberty Metals Corporation was the same Elliott Nachwalter who is the Respondent is the instant case. Petitioner further asserted that in the summer of 1988, through Liberty Metals Corporation, Respondent agreed to sell to Mrs. J. D. Morrison platinum and solicited from Mrs. J. D. Morrison checks totaling $63,000 in payment for the platinum, that the platinum was never delivered to Mrs. Morrison and that Respondent induced Mrs. Morrison into returning a check in the amount of $168,202 which was offered to Mrs. Morrison by Respondent when her account with Liberty Metals was closed. Neither Mrs. Morrison nor Respondent were present or testified at the hearing. Instead, Mrs. Morrison's assertions were delivered through the testimony of her adult son, J. Davis Morrison, Jr. Mr. Morrison holds the durable family power of attorney over the property and assets both real and personal of his father, Kirk Morrison. It was under this authority that Mr. Morrison sought to propose the testimony about his mother's dealings with Liberty Mutual. Mr. Morrison stated that his mother was aged and incompetent to testify; however, no competent evidence of her condition was offered. Further, the relationship between the power of attorney which Mr. Morrison held over his father's property and assets, and any authority over his mother's property and assets which may have been involved with Liberty Mutual was not demonstrated. Mr. Morrison overheard his mother talking on the telephone to someone she identified as "Elliot." He was also aware, through his mother, that she was engaging in dealings for platinum with a Carlos Mas who she told him was in business with Mr. Nachwalter. Mr. Mas has since died. When Mr. Morrison discovered checks of his mother made out to Liberty Metals during the summer of 1988 and saw no confirmations for the purchases, he insisted that his mother close her account with Liberty Metals. On August 23, 1988, a check was delivered to Mrs. Morrison in the amount of $168,202 drawn on Pan American Bank, N.A., and made payable to Mrs. Kirk Morrison. According to Mr. Morrison, the check was returned to the sender by his mother at the insistence of either Mr. Nachwalter or Mr. Mas. Mr. Morrison appeared to be a truly concerned son with, no doubt, the interest of his mother in mind. However, without direct testimony and other forms of competent evidence, the proof has failed to demonstrate that Respondent was involved in the proposed scheme or committed any of the acts alleged by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Real Estate Commission issue a Final Order dismissing the administrative complaint filed against Elliott Nachwalter, licensed real estate salesman holding license number 0451805. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March, 1990. JANE C. HAYMAN 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 9th day of March, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-4524 The following represent the rulings on the proposed findings of fact submitted by parties. The rulings are reflected by the paragraph number of each proposed finding of fact. PETITIONER Adopted in paragraph 1. Adopted in paragraph 1. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as hearsay. Rejected as hearsay. Rejected as not supported by competent, substantial evidence. Adopted, in part, in paragraph 6, rejected, in part, in part, as hearsay. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. Rejected as not supported by competent, substantial evidence. Rejected as irrelevant. RESPONDENT Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 6. Adopted in paragraph 4. Adopted in paragraph 6. Rejected as hearsay. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 John M. McDaniel, Esquire 777 Brickell Avenue, PH-2 Miami, Florida 33131 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Darlene F. Keller, Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all pertinent times, respondent Bobbie G. Scheffer, who holds license No. 0073955, was a real estate broker for Rivard Realty, Inc. in Fort Walton Beach, Florida; and Ralph S. Ecoff was a licensed real estate salesman, employed by Rivard Realty, Inc. He holds license No. 0454969. In the spring of 1988, another salesman in the employ of Rivard Realty, Inc., Wayne Thompson, obtained the listing for the three-bedroom, one-story house at 28 East Casa Loma Drive in Mary Esther, Florida, from its then corporate owner, Roman Acts, Inc. He received information about the property from a representative of the corporation. Without verifying the information, Mr. Thompson entered it into a computer. Misled by the owner's representative, he reported the house's age as eight years. Respondent's Exhibit No. 7. In fact, the house had been built in 1974. Petitioner's Exhibit No. 4. A public water supply serves the house, but a septic tank, not a public sewer, receives wastewater from the house. Aware of these matters, Mr. Thompson, when confronted with a blank on a form labelled "WATR/SEW", filled in "Pub. Wat." Respondent's Exhibit No. 7. No more than another letter or two could have been squeezed into the blank on the form displayed on a computer video terminal. Respondent Ralph S. Ecoff saw the house in the course of showing it to prospective buyers, and decided to buy it himself. After a representative of Roman Acts, Inc. accepted his offer (but before the closing), Mr. Ecoff and a partner set about refurbishing the house. Mr. Ecoff, a septuagenarian who bought the house with the intention of reselling it, finds computers intimidating. Still another real estate salesman in the employ of Rivard Realty, Inc., Steve Kehran, volunteered to enter a revised listing in the multiple listing service computer, to let it be known that the property was again for sale. As instructed by Mr. Ecoff, Mr. Kehran raised the price and "changed the blurbage" (to read "EVERYTHING NEW AGAIN. COMPARES WITH NEW HOME. LOW INTEREST RATE," etc.) Petitioner's Exhibit No. 11. In keeping with Mr. Ecoff's instructions, Kehran relied on the superseded listing for other information about the house. That is why the age of the house was again inaccurately reported as eight years. Extrapolating innocently but inaccurately from the earlier listing's "Pub. Wat.," Mr. Kehran assumed public sewers accompanied the public water supply and filled in the "WATER/SEW" blank with the abbreviation "Comm Sew." Petitioner's Exhibit No. 11. Mr. Ecoff had read the listing from which Mr. Kehran took the information but, he testified, he did not read it carefully. Whether he read over what Mr. Kehran wrote at any time before the Stacys complained of the inaccuracies is not clear. Mr. Ecoff has said all along that he was aware the property had a septic tank. He testified to this effect at hearing and also testified that he was aware the house was more than eight years old when the Stacys agreed to buy it. If he had read the listing Mr. Kehran entered in the computer for him with proper care and due regard for the importance of its accuracy, he would have discovered the misinformation it contained. Although Mr. Stacy had physical possession of a multiple listing sheet bearing the information Mr. Kehran introduced into the computer data bank at Mr. Ecoff's behest, while he and his wife drove around with Ms. Scheffer, looking at houses, and may well have read it at that time, the evidence did not show that either Ms. Scheffer or Mr. Ecoff reiterated the information verbally. (It was not clear whether Mr. Stacy retained the sheet Ms. Scheffer furnished him after seeing the house.) Engaged by a mortgage company, an appraiser who was familiar with the neighborhood reported the true age of the house, but put its "effective age" at ten years, after two visits to the property. The appraiser's report, which recited inaccurately, as the listing had, that a public sewer served the property, was furnished to the mortgage company that financed the Stacys' purchase. Once the report reached the mortgage company, it was available to the Stacys, although they did not in fact see it, as far as the evidence showed, before the closing, which took place on August 24, 1988. On or before January 1, 1991, Mr. and Mrs. Stacy will be required to cause pipe to be installed to connect the house to a public sewer main, itself yet to be laid. Mr. Stacy has been told the hook-up will cost $1,600.00 over and above the $600.00 it will cost to install the connector. Even so, the evidence did not establish that the house's dependence on a septic tank affected its market value in 1988. The evidence also failed to show that the house's age materially affected its value. Ms. Scheffer encourages salespersons in her employ to take advantage of courses the local Board of Realtors offers, and scheduled Mr. Ecoff for every such course available. She has not personally instructed salespeople to verify information sellers give them by independent inspection. Perhaps because the practice of relying on sellers' representations is widespread, the multiple listing sheets all bear the disclaimer, "INFORMATION DEEMED RELIABLE, BUT NOT GUARANTEED." The evidence did not show how carefully Ms. Scheffer read the inaccurate listing that salesmen in her employ generated, or that she would have been or should have been aware of the inaccuracies, however carefully she had examined the listing. Although Mr. Ecoff said he knew there was a septic tank on the property because the grass was so green in part of the backyard, Mr. Stacy testified that the septic tank is buried in front of the house. It was not proven that even an experienced real estate broker like Ms. Scheffer should necessarily infer an actual age of more than eight from an effective age of ten years. In short, the evidence did not clearly and convincingly demonstrate that respondent Scheffer actually knew or had reason to know the listing was inaccurate.
Recommendation It is, in accordance with Rule 21V-18.008, Florida Administrative Code, recommended: That petitioner suspend respondent Ecoff's license for thirty (30) days. That petitioner dismiss the administrative complaint, insofar as it alleges that respondent Scheffer violated Section 475.25(1)(b), Florida Statutes (1989). RECOMMENDED this 20th day of December, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1990.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Karen Akinbiyi, is a licensed real estate salesperson in the State of Florida, having been issued license number SL-0642172. On June 14, 1996, Respondent filed an application (dated May 1996) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent responded to the question by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On September 30, 1996, Respondent passed the salesperson examination and she was issued license number SL-0642172 as an inactive salesperson. From December 30, 1996, through June 4, 1997, Respondent was an active salesperson associated with Home Realty Corporation, a broker corporation trading as ERA Homeland Realty and located at 6051 Miramar Parkway, Miramar, Florida. From June 5, 1997, through the date of hearing, Respondent was "not . . . in compliance to operate in an active status due to no employing broker." (Petitioner's Exhibit 1.) Following approval of Respondent's application, and her licensure as a real estate salesperson, the Department discovered that Respondent had been involved in a criminal incident that was not revealed on her application. According to the proof (Petitioner's Exhibit 3), Respondent was arrested on August 16, 1990, and charged, inter alia, with the purchase of marijuana (cannabis), under 10 grams, in violation of Section 893.13(2)(a)2, Florida Statutes, a felony of the third degree. On August 28, 1990, an Information was filed, predicated on such offense, and on September 6, 1990, Respondent entered a plea of nolo contendere. By order of the same date, the court noted that Respondent had been found guilty of the charge, but withheld adjudication of guilt. Respondent was sentenced to (accorded credit for) time served (one day), ordered to pay various costs totaling $225.00, and fingerprinted pursuant to Section 921.241(1), Florida Statutes. Based on such incident, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the criminal incident on her application, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." (Count I), and that "Respondent has failed to disclose arrest or conviction of a crime as required by . . . [Rule 61J2-2.027(2), Florida Administrative Code] and, therefore, is in violation of [Section] 475.25(1)(e), Fla. Stat." (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be as follows: . . . The penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 1 At hearing, Respondent offered the following explanation regarding the criminal incident and her failure to disclose it on her application for licensure: DIRECT EXAMINATION * * * Q. . . . Ms. Akinbiyi, do you recall being arrested for unlawful purchase of cannabis? A. Yes, I do. * * * Q. And what happened after the arrest? A. After the arrest I was let go. I went to the phone book, looked up an attorney, talked to him over the phone, briefly told him what it is I wanted him to do. He told me to come to his office. I went to his office. He told me what he was going to do. He told me that he needed $300 to do it. I gave it to him. He gave me a receipt. He gave me a rubber stamp on the receipt, and I left. Q. Okay, and when he said he was going to take care of it, what did you believe that to mean? A. Well, I believed it to mean that it had been dismissed, and he was going to just erase it off my record, period, expunge it, take it away. Q. Okay, after that day did you have any more contact with this attorney? A. No, I didn't have any need to, because I paid him to do a job I thought he did. Q. Okay, when was the first time that this arrest was brought up again? A. When I got the letter from the Real Estate Commission, telling me that they see that I've been arrested, and I didn't answer properly to the application. . . . * * * Q. . . . when you answered the question on the application did you believe that you had been -- did you know what a withhold of adjudication was at the time? A. At the time, no. I just knew that I paid this lawyer, and everything was supposed to be okay. Q. Okay, at the time that you answered the question did you believe your criminal charge had been dismissed? A. Yes, I did. Q. . . . at any time when you were responding to the question regarding, have you ever been convicted or pled no contest to a crime, were you intending to conceal or misrepresent this crime? A. No, I was not. * * * CROSS EXAMINATION * * * Q. Ms. Akinbiyi -- A. Uh-huh (positive response.) Q. -- you testified that when you were filling out the application for your real estate license that you believed that your record have been sealed or expunged by your attorney, correct? A. Exactly. Q. Do you recall reading the last paragraph to Question Number 9, which reads, "if you intend to answer no because those records have been expunged or sealed by the Court, you are responsible for verifying expungement or sealing prior to answering no"? A. Well, it wasn't a problem, because I knew where the attorney's office was, and if I needed him I could just go back there and say, remember me, I paid you. This is my case number, and he can go ahead and look it up. Q. So did you ever actually verify that your records were sealed or expunged before answering that? A. No, I did not. No, I did not, but I just assumed it was since I paid him. Q. At the time that you were filling out this application you did have a recollection of this criminal charge? A. Yes, I did. * * * THE COURT: Let me ask you a question. You were in jail for one evening; is that correct? THE WITNESS: That's correct. THE COURT: Okay, and when you were released the next morning is when you called the lawyer? THE WITNESS: Yes, it is. THE COURT: And you went to see him the same day? THE WITNESS: Yes, I did. THE COURT: And at that time you paid him $300, and he gave you a receipt for the money? THE WITNESS: Yes, he did, that's correct. * * * THE COURT: Did you ever see the lawyer again after that date? THE WITNESS: No, I didn't. THE COURT: Did you ever appear in Court? THE WITNESS: No. THE COURT: Did you ever have any contact with the criminal justice system after your release from jail on this charge? THE WITNESS: No, sir. * * * [RE-CROSS EXAMINATION] Q. Do you remember going to court and entering a plea of no contest to this charge. . . A. I really don't . . . After I went to -- after I just spent the night, I believe the next day we did go to court. I don't know, because it was like a whole group of us. Everybody, they just said their name, and it wasn't like a one person deal. It was everybody collectively standing up going to court. So I could have. To be honest with you, I can't remember. Q. Do you remember talking to the judge? A. I remember I was in a courtroom, and then they said time served, and I said okay. And I went home, I called my husband, looked in the phone book, got an attorney and went straight to his office. Q. Do you remember being fingerprinted when you were in court? A. . . . not in court. When I got arrested I got fingerprinted. Q. Okay, but you weren't fingerprinted in court again? A. No, I wasn't. Q. Okay. Just one more question. Do you remember having to pay any costs to the Court for this charge? A. No. . . . I don't recall any charges that I had to pay myself. Having carefully considered Respondent's testimony at hearing, and having reflected further on her explanation for failing to disclose the criminal incident on her application (that she employed an attorney to expunge or seal her record, and she assumed he had done so when completing the application), it must be resolved that Respondent's explanation was lacking in sincerity or genuiness, as well as substance, and must be rejected as unpersuasive. In so concluding, it is initially observed that Respondent's version of her exposure to the criminal justice system does not conform with the objective proof of record. (Petitioner's Exhibit 3.) Notably, Respondent avers that she employed an attorney to expunge or seal her record on August 17, 1990 (the day she was released from jail, and the day after her arrest), and that she had no further contact with her lawyer or the criminal justice system after that date; however, the objective proof demonstrates that the Information did not issue until August 28, 1990, and that it was not until September 6, 1990, that Respondent, accompanied by her attorney, entered a plea of nolo contendere. The objective proof further reflects that on the same date (September 6, 1990) the court noted her guilty of the charge, but withheld adjudication of guilt and sentenced her to time served, ordered her to pay various costs totaling $225.00, and oversaw that she was fingerprinted in open court. Clearly, Respondent's version of the event does not comport with the objective proof, and it is most unlikely that a person would confuse or forget an appearance in court on a felony charge, the entry of a plea to a felony charge, or being fingerprinted in open court. Moreover, it is most unlikely that Respondent would engage an attorney the day after her arrest, and before the Information had been filed or resolved, to expunge or seal her record. Finally, had she made such a request of her attorney at anytime, it is most improbable that she would not contact or inquire further of her attorney to ascertain whether her record had been successfully expunged or sealed. In sum, Respondent's testimony that her response to item 9 on the application was, at the time, an accurate reflection of her understanding of the status of the criminal incident (that the record had been expunged or sealed) is improbable and unworthy of belief. Consequently, it must be resolved that Respondent's failure to disclose the incident was intentional.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating Subsections 475.25(1)(e) and (m), Florida Statutes, as alleged in the Administrative Complaint. It is further RECOMMENDED that for such violations, the final order revoke Respondent's license. DONE AND ENTERED this 21st day of May, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1999.
Findings Of Fact Petitioner is the state agency charged, in conjunction with the Construction Industry Licensing Board, with the responsibility to prosecute Administrative Complaints pursuant to Chapters 489, 455, and 120, F.S. and the rules promulgated pursuant thereto. At all times material to the Administrative Complaints, Respondent, Leonard Leon Lynn, was licensed as a certified residential contractor in the State of Florida, having been issued license number CR C048007, and was registered to do business as Five Star Construction. He was first licensed in 1989. [DOAH Case No. 92-0593] In March, 1990, the Respondent contracted with Andrew Gudzak (Gudzak) to insulate the roof of, install a roof on, and install vinyl windows on Gudzak's screen porch. The contract price was $2,900.00. The Respondent performed the Gudzak job and was paid in full per a $1,000.00 deposit on March 23, 1990 and a $1,900.00 final payment on April 12, 1990. The Respondent stipulated that he failed to obtain the required permit for the Gudzak job in violation of the local building code, with the proviso that he was confused about where the controlling county line was located in relation to Gudzak's residence. The roof the Respondent installed on Gudzak's porch began leaking following completion. Gudzak contacted the Respondent concerning the leakage and improper closure of the windows installed by the Respondent, on approximately thirty-five days from the 25th of April to late August of 1990. The Respondent attempted to correct the leakage and windows numerous times without success. Gudzak retained an attorney who contacted the Respondent by letter on May 22, 1990. The Respondent last attempted to correct the leakage on July 16, 1990. Thereafter, Respondent refused to respond to Gudzak's requests. The leakage was never corrected. The Department of Professional Regulation has accumulated $58.00 in investigation costs, $1,142.00 in legal costs, and $9.00 in current year expenses associated with Case No. 92-0593 as of the date of Petitioner's Proposed Recommended Order. [DOAH Case No. 92-1494] In September, 1990, the Respondent contracted with Paul Rommel (Rommel) to construct a screened porch, with roof and skylights, on an existing patio. The contract price was $2,950.00. The Respondent substantially performed the Rommel job by September 21, 1990 and was paid in full per checks for $1,180.00 and $1,770.00. The Respondent stipulated that he failed to obtain the required permit for the Rommel job in violation of the local building code. After completion of the Rommel porch, the porch roof began to leak severely, and Rommel contacted the Respondent. The Respondent attempted to correct the leaks on several occasions without success. Eventually, the Respondent quit responding to Rommel's requests to correct the severe leakage. On December 4, 1990, the Respondent received a certified letter from Rommel requesting the Respondent address the problems with the roof. The Respondent did not respond to Rommel's written request. On December 17, 1990, an attorney representing Rommel sent the Respondent a certified letter requesting a refund of the contract amount. The Respondent did not respond thereto, and a judgment was entered against the Respondent on July 30, 1991 for $2,500.00. The Respondent was present at the civil action. As of the date of formal hearing, the Respondent had neither paid the aforementioned judgment nor corrected Rommel's porch. The Department of Professional Regulation has accumulated $134.60 in investigation costs, $1,037.80 in legal costs, $443.26 in current year expenses and $102.00 in prior accumulated costs associated with Case No. 92-1494 as of the date of Petitioner's Proposed Recommended Order.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That the Florida Construction Industry Licensing Board enter a Final Order. That finds Respondent guilty of violating Sections 489.129(1)(n) and 489.129(1)(m) F.S., penalizes Respondent by a fine of $1,000, and assesses $1,200.00 in investigation and prosecution costs in DOAH Case No. 92-0593; That finds Respondent guilty of violating Sections 489.129(1)(n) and 489.129(1)(m) F.S., penalizes Respondent by a fine of $1,000, and assesses $1,172.40 in investigation and prosecution costs in DOAH Case No. 92-1494; and That, in consideration of the cumulative nature of the two cases, revokes Respondent's license. RECOMMENDED this 24th day of February, 1993, at Tallahassee, 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 24th day of February, 1993. APPENDIX TO RECOMMENDED ORDER 92-0593, 92-1494 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner PFOF: 1-8 Accepted (Gudzak, DOAH Case No. 92-0593). 9-16 Accepted (Rommel, DOAH Case No. 92-1494). Respondent PFOF: Respondent has apparently confused the case numbers herein, since he refers to "Rommel" in his submittal numbered 92-0593 and "Gudzak" in his submittal numbered 92-1494. The undersigned has assumed that Respondent intended that the specific name was intended over the DOAH Case No. and has ruled upon the two proposals in that manner. Respondent also failed to number his proposals, so they have been ruled upon by paragraph as indicated. Gudzak proposals Paragraph 1 Rejected as introductory. Paragraphs 2-4 Not proven nor supported by the competent credible record evidence. The remainder is rejected as legal argument only. Rommel proposals Paragraph 1 Rejected as introductory. Next sentence Accepted. Next sentence Not proven or supported by the greater weight of the evidence. Even if proven, would not relieve Respondent of the responsibility to pull the permit. Remainder Rejected as mere legal argument except for the admission that Respondent acquiescence to the agency's affidavit of fees for both cases. That acquiescence has been accepted but modified pursuant to the conclusions of law stated. COPIES FURNISHED: G. W. Harrell, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Leonard Leon Lynn 6121 Sundew Court Jacksonville, FL 32244 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202
