Findings Of Fact On or about July 29, 1987, Petitioner filed with Respondent an Application for Licensure as a Real Estate Salesman. The application revealed that Petitioner had been charged with attempted sexual battery, as to which adjudication had been withheld, and Petitioner had received five years' probation. The application also disclosed that he had served 17 days in Orange County Jail for possession of marijuana. Pursuant to order dated June 3, 1981, in Orange County Circuit Court Case No. CR 80206, Petitioner, having entered a plea of no contest to attempted sexual battery on his 15 year old stepdaughter, was placed on five years' probation for this second degree felony as to which adjudication of guilt was withheld. Pursuant to judgment entered on February 27, 1984, in Orange County Circuit Court Case No. 80-206, Petitioner, having been found to have violated his probation, was adjudicated guilty of the above-referenced count of attempted sexual battery in violation of Sections 777.04 and 794.011(4)(e), Florida Statutes. Pursuant to order of disposition in Orange County Court Case No. M083- 4486, Petitioner, having entered a plea of no contest to possession of cannabis, was fined $100 plus court costs for this misdemeanor as to which adjudication of guilt was withheld. Petitioner testified further that, in connection with this incident, he entered a plea of guilty to attempt to evade arrest. Petitioner testified that he was generally of good character and a solid citizen apart from the criminal record disclosed on the application and court records produced at the hearing. However, he offered no corroborative evidence in this regard, nor specific examples of his behavior from which good character could be inferred.
Findings Of Fact The Respondent is now and has been since about September 9, 1988, a licensed real estate salesman in the State of Florida. She was issued license number 0523257. The last license issued was as a salesman, in care of Hammocks Properties, Inc., 9290 Hammocks Boulevard, #404, Miami, Florida 33196, with a home address of 7390 Northwest 48th Street, Lauderhill, Florida 33319-3401, listed with the Florida Real Estate Commission as of April 10, 1990. Prior to obtaining her initial real estate salesman's license, the Respondent filed an application for licensure as a real estate salesman. In that application the Respondent represented that all the answers and statements in the application were true and correct, and as complete as her knowledge, information, and records permit, without any evasions or mental reservations whatsoever. Question 6 on the application form read as follows: "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?" The Respondent's answer was, "Yes." The second part of Question 6 read as follows: "If you answered "Yes," please state the details including dates and outcome in full. (Use separate sheet if necessary.)" The Respondent's answer to this part of Question 6 was as follows: "I pleaded guilty to a third degree conspiracy, in 1982 in New Jersey involving an insurance claim." By letter dated February 3, 1988, Ms. Ruth Clayton, Supervisor of Application Certification, wrote to the Respondent seeking more details regarding the Respondent's answer to Question 6. By means of an undated letter, which was received by the Florida Real Estate Commission on February 17, 1988, the Respondent replied to Ms. Clayton's further inquiry about her answer to Question 6 on the application. The letter requesting clarification asked the following specific questions: "What was involved? Was it monies, etc? If a monetary value was involved advise us of the value. What was the court's disposition of the matter? Are you on any type of probation or parole?" The Respondent's letter of reply read as follows, in material part: I am replying to your letter of February 3, 1988 with regards to question #6. I was a part owner of a property in New Jersey in 1982 that was damaged. I did not commit any crime, did not make an insurance claim, and received no monetary gain. I was advised by the police without an attorney present to plead guilty to a third degree crime as part of a plea-bargain. This was to save my family from the strain, embarrassment, and expense of a lengthy trial. There was to be no trial and no punishment. I was placed in an Intensive Supervision Program for one year in which my only restriction was not to leave the state of New Jersey without permission. I am not currently, nor was I ever on any type of probation or parole. This is a matter which happened in 1982 in which I signed a document against my interest without knowing the consequences. I was never involved in a criminal matter before, nor after till this date. I am a moral, ethical, law abiding person and have raised five beautiful children. I have been in my own business for the past fifteen years and have never been involved in any litigation. On March 14, 1983, the Grand Jury in Monmouth County, New Jersey, issued a fourteen-count indictment against Frida Koren and others. The indictment alleged that the defendants had committed various crimes in the course of a criminal scheme to set fire to a house owned by the Respondent and her husband. Four of the fourteen courts alleged criminal conduct by the Respondent. On May 12, 1983, the Respondent retracted a plea of not guilty to all counts and entered a plea of guilty to Count 2 of the indictment. The essence of Count 2 was an allegation that the Respondent and the other defendants "... did commit the crime of conspiracy in that they unlawfully agreed with each other to commit the crime of arson, with the purpose of promoting or facilitating its commission...." The caption to Count 2 describes it as a "third degree crime." On October 28, 1983, the Respondent was sentenced to a prison term of 5 years with a minimum parole ineligibility of 2.5 years. By order dated April 17, 1984, the sentence was modified to delete the parole ineligibility clause and to add a fine of $7,500.00. On June 25, 1984, the Respondent was released into the Intensive Supervision Program for a trial period. On January 11, 1985, the Respondent was resentenced into the Intensive Supervision Program for 5 years. By subsequent order, the Respondent was discharged from supervision of the Intensive Supervision Program as of August 9, 1985.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case concluding that the evidence is insufficient to sustain the charge against the Respondent and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of September 1990. 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 4th day of September 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0448 The following are my specific rulings on the proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraph 1: Rejected as constituting a conclusion of law rather than a proposed finding of fact. (It is an accurate conclusion of law.) Paragraphs 2, 3, 4, and 5: Accepted. Paragraphs 6 and 7: Rejected as irrelevant, because there is no issue in this case regarding the Respondent's citizenship. Paragraphs 8 and 9: Accepted, with some additional facts in the interest of clarity. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Findings proposed by Respondent: The first eight unnumbered paragraphs of findings proposed by the Respondent are accepted. The remaining unnumbered paragraphs of findings proposed by the Respondent are all rejected as constituting argument or proposed conclusions of law, rather than proposed findings. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Dean J. Trantalis, Esquire Arvida Parkway Center 7900 Glades Road Boca Raton, Florida 33434 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 By an application received by the Board on March 21, 1979, Petitioner Carole Leigh McGraw applied for registration as a real estate salesman with the Florida Board of Real Estate. Question number 6 of the application form inquired about past arrests or charges for violation of law. Ms. McGraw indicated that she had been arrested and as an explanation attached a separate sheet of paper on which she disclosed that she was arrested in July, 1973 for various criminal charges pending before the Court of Common Pleas in Cincinnati, Ohio. She referred the Board for further details to her attorney, James N. Perry, Esquire of Cincinnati, Ohio. No attempt was made by the applicant to conceal any of the facts relating to her outstanding charges. Subsequent to the receipt of her application the Board requested on April 10, 1979, that Ms. McGraw furnish a copy of the indictment and advise the Board of the present status of the indictment. That information was provided by James N. Perry, Esquire who indicated in his letter of April 23, 1979, that counts 1, 2, 3 and 4 of the twenty count indictment had been dismissed. The dismissal was on appeal and probably would be decided eventually by the Ohio Supreme Court as the issue on appeal is the constitutionality of the organized crime status of Ohio. On July 7, 1978, in the Hamilton County Court of Common Pleas, State of Ohio, the applicant, Carole Leigh McGraw, was indicted by Grand Jury on four counts of engaging in organized crime, six counts of forgery, one count of theft in office and one count of felony theft. None of these charges has been brought to trial. Except for the foregoing indictment the applicant has never been charged with any violation of law or with being dishonest or immoral in any way.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Carole Leigh McGraw for registration as a real estate salesman with the Florida Board of Real Estate be granted. DONE and ENTERED this 13th day of February, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1980. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Carole Leigh McGraw 4180 South West 52nd Court Apartment #1 Fort Lauderdale, Florida 33314
The Issue The issue is whether Respondent is guilty of obtaining his real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Seeking to become a licensed real estate salesperson, Respondent submitted to Petitioner an application on December 16, 1996. One of the questions on the application form asks: 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? . . . [Bold] 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. [End Bold] Respondent checked "yes," but failed to attach the details or otherwise describe them on the form. As alleged, Respondent pleaded no contest to driving under the influence in July 1991, and he was adjudicated guilty. He was placed on supervised probation for one year and lost his driving privileges for six months. As alleged, Respondent pleaded no contest to the traffic misdemeanor of reckless driving and misdemeanor possession of under 20 grams of marijuana in June 1995. He was adjudicated guilty of reckless driving, and adjudication was withheld as to possession of marijuana. He was fined $630 and court costs for reckless driving. In completing the application, Respondent realized that he would have to supply the details of the criminal offenses, of which he admitted when he checked the "yes" box. However, he set aside the application for a week or two, and, when he picked it up again to finish, he forgot about the need to attach a supplement. He thus sent it in incomplete and with a personal attestation that it was complete. Despite the obvious omission from the application, Petitioner issued Respondent a real estate salesperson's license without requesting further information concerning the criminal offenses. Respondent took the licensing examination on February 17, 1997. Passing the examination, he received his license shortly after it was issued on March 24, 1997. The next contact between the parties was when Respondent received a letter, dated February 25, 1998, from Petitioner noting that the Florida Department of Law Enforcement had informed Petitioner of an arrest for the latter criminal offenses. The letter states: "To clear any ambiguity regarding your 'YES' response to the relevant application question, we request additional information." The letter also requests an explanation regarding Respondent's failure to disclose this information on his application form. The letter concludes that Respondent's application would be held in abeyance until receipt of the requested information. By letter dated March 9, 1998, Respondent explained the circumstances surrounding the latter offenses, saying that he had not disclosed the information on the original application due to embarrassment. The letter does not mention the earlier criminal offense of driving under the influence. Respondent testified at the hearing that he claimed embarrassment because he did not think that it would sound as good to say that he had forgotten about the need to add the supplement to his application. This testimony is credited. It is impossible to infer an affirmative misrepresentation or attempt to conceal in the initial application. Respondent disclosed a criminal offense, and it was abundantly clear on the face of the short application form that he had failed to describe the disclosure, as requested to do so. Perhaps Petitioner's employees missed the box checked "yes" or, finding it, forgot to follow up on the matter. Clearly, though, Respondent sufficiently disclosed the matter to preclude a finding, on these facts, of any misrepresentation or intent to conceal. Respondent's March 9 response to the February 25 letter is a different matter. Although the February 25 letter focuses its inquiry upon the latter criminal offenses and does not request a comprehensive response to the question of criminal offenses, Respondent could have also mentioned the earlier offense. This would have negated any inference whatsoever of an affirmative misrepresentation or intent to conceal in the application or at this later stage. However, even considering the shortcoming of the February 25 response, the facts still do not support the finding, by clear and convincing evidence, that Respondent intentionally concealed the criminal offenses in his application. As to the omission from the February 25 letter as a basis for discipline in itself, the Administrative Complaint does not charge Respondent with anything arising directly out of the contents of his February 25 letter. Likewise, Petitioner's proposed recommended order does not even mention Respondent's February 25 response.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 24th day of November, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Warren Keith Babb, pro se 2310 Southwest 53rd Street Cape Coral, Florida 33914 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact In his application for licensure as a real estate salesman dated January 19, 1982, Petitioner answered question 6 inquiring about previous arrests "yes" and for details wrote "see attached page." On the attached page Petitioner noted to see attached copy of his past driving record. That record shows four traffic violations in 1975, two in 1976 and one in 1977. Only one of these violations resulted from an accident and in this accident there were no injuries. None of these violations were for DWI. On April 1, 1975 Petitioner became 17 years old. On the attached page Petitioner also wrote in answer to question 6: In 1976 applicant was charged with breaking and entering after turning himself in to the police upon advice of the naval recruiting officer. Was exonerated of charge upon entering U.S. Navy soon thereafter. In 1977 applicant was charged with possession of marijuana. Sentenced to six months probation. After successfully completing said proba- tion charges were removed from ap- plicant's record. In checking police files in Ottowa County, no record of these charges will be found. I hope my honesty in this matter will be taken into consideration. NOTE: Both criminal violations mentioned occurred in Holland, Michigan, Ottowa County. The breaking and entering charges were dropped and Petitioner was never tried on those charges. The check made by Respondent through the Florida Department of Law Enforcement revealed no criminal record for Petitioner. This is corroborated by Exhibit 1. In 1977 when Petitioner was found guilty of possession of marijuana at the age of 19, it appears that adjudication of guilt was withheld and upon successful completion of six months' probation this offense was expunged from the record. This offense did not show up on the FBI fingerprint search conducted on this application. This too is corroborated by Exhibit 1. Possession of a small amount of marijuana is a misdemeanor. Petitioner has had no arrests for any offense, including traffic offenses, in the past four years (since he was 20 years old). His reputation for truth and veracity is good and he can be trusted in a business transaction. On the witness stand Petitioner presented a forthright demeanor and fully answered all questions. He applied for a job as an account executive with A. G. Edwards & Sons and after completing the battery of tests and the interview with the Vice President and Branch Manager of the New Port Richey office, the latter deemed Petitioner qualified. Exhibit 2 corroborates Petitioner's testimony in this regard. If the brokerage business picks up Petitioner expects to be employed in the A. G. Edwards office in February, 1983. While working as a correctional officer at Pasco County Correction Center, Petitioner was promoted temporarily to assist shift supervisor and was recommended for permanent promotion to shift supervisor. (Petitioner's testimony corroborated by Exhibit 4.)
Findings Of Fact Testimony established that during late December, 1975, Land Re-Sale Service, Inc., a Florida corporation, filed application with the Commission, seeking registration as a corporate real estate broker. That application revealed that Respondent Frank Viruet was to become the Active Firm ember Broker, and Vice President of the company; that Carol Bauman was to become Secretary-Treasurer and that Lee Klein was to become President and Director of the company. Testimony reveals that Carol Bauman is the wife of the Respondent Bernard Bauman; that Lee Klein is the sister of Carol Bauman and that Jeffrey Bauman is the son of Bernard Bauman. Subsequent to the filing of the above referenced corporate application for registration, the name was changed to Noble Realty Corporation and shortly thereafter to Deed Realty, Inc., and that at each such change, new application for corporate registration was filed with the Commission. Evidence also revealed that the officers and Active Firm Member Broker remained as stated and therefore for all legal purposes, the above corporate entities are one and the same. Turning to the complaint allegations in Count One, according to the certificates of the Commission's Chairman, dated December 3, which was offered in evidence by Petitioner and admitted without objection, during the period of November 1, 1975 through the date of said certificate (December 3, 1976), which covers the material dates of the complaint herein, no registration was issued to or held by the above three named corporations. This was further confirmed by testimony of Bernard Bauman who was to have become a salesman associated with the above entities and by Frank Viruet, the broker, who was to have become the Active Firm Member Broker for the above entities. Approximately December 2, 1975, Land Re-Sales Service, Inc., entered a written lease for office premises known as Room 212, Nankin Building, which is located at 16499 N.E. 19th Avenue, North Miami Beach, covering the period January 1, through December 31, 1976. (A copy of the lease was entered into evidence by stipulation of the parties.) The unrebutted testimony of Petitioner Reagan was that he observed, during his investigation of this cause, a building directory on the ground floor entrance to the Nankin Building displaying the name Noble Realty Inc., and a similar display on the building directory on the second floor. Petitioner's witness, Peter King, representative for Southern Bell Telephone Company testified that based on records received, three phones were installed in said room 212, Nankin Building on December 27, 1975, in the name of Land Re-Sale Service, Inc. and that from January 2, 1976 through January 16, 1976, approximately 575 calls were made from the above phones during evening hours to out-of-state numbers. Bernard Bauman and Jeffrey Bauman admitted to having made phone calls to out-of-state numbers for purposes of soliciting real estate sales listings, but both were unable to recall nor did they have records to substantiate how many calls they made. Bernard Bauman testified that approximately four listings were obtained with an advance fee of $375.00 for each listing. He further testified that upon being advised by the investigator with the Commission that the operation was in violation of the licensing law, by reason that no registration had been issued to the applicant company and that all who were engaging in real estate activities for said company were in violation of the licensing law. Thereafter the premises were closed and as best as can be told, all real estate activities ceased. This was further confirmed by Petitioner Reagan. The evidence respecting Count two of the administrative complaint established as stated above that Respondents Bernard and Jeffrey H. Bauman solicited real estate listings with representations to property owners that the listings would in fact be published and disseminated to brokers nationwide. However, both Baumans admitted that their listings were never published or otherwise disseminated to brokers. According to Bernard Bauman's testimony, no monies received were ever returned. There was no evidence to show that Respondent Bernard Bauman knew at the time of soliciting that no bona fide effort would be made to sell properties so listed with Noble Realty Corporation.
Recommendation Based on the above findings and conclusions of law, it is therefore recommended that the registration of Bernard Bauman be revoked. DONE and ENTERED this 12th day of January, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Respondents, Ernest Page and Page Realty, Inc. are licensed as real estate brokers in the State of Florida, having been issued license numbers 0187380 and 0223391, respectively. From approximately July 28, 1983, to approximately August 11, 1983, the Respondent, Ernest Page, knowingly obtained or used, or endeavored to obtain or use, certain personal property, including typewriters, copy machines, a television receiver, and a stereo receiver, each of which was valued at $100.00 or more, which was the property of Stewart Hudson or Michael Bethea, with the intent to temporarily or permanently deprive the owners thereof, and to appropriate this property to their own use. The Respondent, Ernest Page, had received and was in possession of property that he knew or had reason to know was stolen. The Administrative Complaint tracked the charging language of the information filed against the Respondent, Ernest Page, in the Circuit Court of the 9th Judicial Circuit of Florida. The Respondent, Ernest Page, was found guilty of six counts of grand theft second degree by a jury on January 31, 1984. He was adjudicated guilty by judgment dated March 28, 1984, of six counts of grand theft second degree, which crimes are punishable as third degree felonies. The Respondent, Ernest Page, was sentenced on March 28, 1985.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that real estate broker's license numbered 0187380 and 0223391, held by the Respondents, Ernest Page and Page Realty, Inc., respectively, be revoked. THIS RECOMMENDED ORDER entered this 31st day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1985. COPIES FURNISHED: James H. Gillis, Esquire 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32801 Edward R. Kirkland, Esquire 126 E. Jefferson Street Orlando, Florida 32801 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Department of Professional Regulation 400 West Robinson Street P. O. Box 1900 Orlando, Florida 32802
Findings Of Fact The Respondent Ben D. Harrell, is registered with the Real Estate Commission as a real estate salesman. Copies of the Administrative Complaint filed by the Commission were forwarded to the Respondent at the address he most recently provided the Commission. In addition, a copy of the complaint was hand served upon the Respondent. A copy of the Notice scheduling the final hearing was also forwarded to the Respondent at his last listed address. A Grand Jury for the United States District Court, Middle District of Florida, Jacksonville District, returned an indictment against the Respondent, charging him with knowingly making materially false statements in a Satisfaction of Mortgage submitted to the Federal Land Bank in violation of Title 18 United States Code, Section 1014. The Respondent was convicted of the charges and on May 13, 1977, he was adjudicated guilty and sentenced to serve two years in federal penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of five years. The crime of which the Respondent was convicted involves dishonest dealing in connection with a real estate transaction, and is a crime involving moral turpitude.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered finding the Respondent guilty of the charges alleged in the Administrative Complaint and suspending the Respondent's registration as a real estate salesman for a period of two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of July, 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mark A. Grimes, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Ben David Harrell 900 S.W. 15th Terrace Fort Lauderdale, Florida 33312 ================================================================= AGENCY MEMORANDUM ================================================================= November 8, 1978 MEMORANDUM TO: Renata Hendrick, Registration Supervisor FROM: Mark A. Grimes, Staff Attorney RE: PD 3278 FREC vs. Ben David Harrell DOAH Case No. 78-835 Enclosed* is a copy of a Final Order suspending the above named Defendant's registration for a period of two years. Please mark your records accordingly. Mark A. Grimes MAG:lam * NOTE: The Agency Final Order is not available at the Division and therefore not a part of this ACCESS document.
The Issue The ultimate issue for determination at final hearing was whether Petitioner's application for licensure as a real estate salesperson should be approved.
Findings Of Fact In October 1992, Petitioner filed an application with Respondent for licensure as a real estate salesperson, together with the required fee. The application asked several questions, including in pertinent part: Question 9: if Petitioner had been "convicted of a crime, found guilty or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld," and Question 13: if Petitioner had had a license to practice any regulated profession revoked upon grounds of fraudulent or dishonest dealing or violations of law. Petitioner responded in the affirmative to both questions and provided written documentation and statements regarding the questions. Petitioner attached to her October 1992 application for licensure various letters to support her application. The letters included one from her probation officer indicating her compliance with her probation; from the local board of realtors indicating that no complaints had been registered against Petitioner during her membership with them, which was from 1979 to 1982 and 1990 to 1992; and from her present employer who is a licensed real estate agent and has employed Petitioner since 1989. On October 21, 1992, Respondent denied Petitioner's application for licensure as a real estate salesperson. The denial was based upon her response to questions 9 and 13 on the application, specifically her 1991 conviction and sentence and the 1992 revocation of her real estate salesperson license. On May 29, 1991, Petitioner plead nolo contendere to three felony counts of grand theft in the third degree. She was placed on probation for five years with special conditions, and adjudication of guilt was withheld. The special conditions of Petitioner's probation were that she would make restitution in the amount of $19,864.52, that she would perform 500 hours of community service, that she would fully cooperate with the State Attorney's Office in the investigation of the criminal activity in which she was involved, and that the probation may be terminated, upon motion, after 30 months. The theft involved a scheme devised by Petitioner's "boss" to obtain funds, beyond entitlement, from the City of Miami. Petitioner was employed as a bookkeeper by an elderly center from 1986 to 1988, which provided transportation, lunches and recreational activities for senior citizens. The center received funds from the City of Miami to operate by being reimbursed for monies paid to vendors. From 1986 to 1988, the center was performing poorly economically. In order to obtain additional monies, the invoices of vendors who did business with the center were inflated or increased and submitted by the center to the City of Miami for reimbursement. As bookkeeper, Petitioner was instrumental in the scheme. The difference between the actual cost and the inflated cost was retained by Petitioner and her boss and distributed at the end of the year to the center's employees, including Petitioner and her boss. Petitioner and her boss controlled the illegally obtained funds. At the end of the center's budget year, which was June 30th of each year, the center was withholding back payments to the U.S. Internal Revenue Service (IRS), using the funds held to pay salaries. As a result, a debt to IRS was created, and when IRS attempted to collect on the debt in 1988, the scheme was discovered and stopped. Petitioner cooperated fully with the State Attorney's Office. At the time of her conviction, Petitioner was licensed by Respondent as a real estate salesperson. Less than a month after her plea of nolo contendere to the grand theft charge and sentence, in June 1991 Petitioner notified Respondent of her conviction and sentence in accordance with statutory provisions regulating the practice of her profession as a licensed real estate salesperson. No evidence of any other conviction was presented. Subsequently, on or about October 30, 1991, an administrative complaint was filed by Respondent against Petitioner based upon her conviction. Petitioner admitted the allegations contained in the administrative complaint. She saw no need to deny the allegations, since she had reported the incident to Respondent. To Petitioner's shock and surprise, in a Final Order dated February 14, 1992, Petitioner's license as a real estate salesperson was revoked by Respondent. Petitioner had been licensed for 13 years without a complaint being filed against her. On February 13, 1992, Petitioner's probationary terms were modified by the court due to her inability to pay the $19,864.52 restitution. The modification included, among other things, that Petitioner was only required to pay monthly the restitution to individuals, which totaled $1,700, that the restitution to the City of Miami could be paid through community service at $10.00 per hour for each month that Petitioner was unable to pay, and that probation could be terminated early after 30 months if restitution was paid in full. By March 9, 1993, Petitioner had completed 500 hours of community service in accordance with the original court order, and for compliance with the modified court order, she had completed 235 hours of community service and paid $125.00 restitution to individuals. Prior to her conviction and license revocation, in 1989. Petitioner was employed with a real estate broker at Allied Associates of the South, Inc. (Allied Associates), in Miami Springs, Florida, as a sales associate, and continued in that position until sometime in 1991 when, due to economic constraints on Allied Associates, the broker cut her staff, choosing a more experienced salesperson over Petitioner. During her employment as a sales associate, no complaints were received by Allied Associates against Petitioner, and no money which was entrusted to her was reported missing. Allied Associates received many complimentary remarks from clients and real estate brokers alike. Subsequently, in November 1991, the broker re-employed Petitioner as a sales manager at Allied Associates. Petitioner informed the broker of her conviction and the circumstances of her conviction. The broker has allowed Petitioner to manage the financial books of the business with no problems. And Respondent has audited Allied Associates' financial books without citing a problem. Furthermore, Petitioner has handled escrow deposits and cash without any problems. Since October 1992, Petitioner has been working with Allied Associates as a sales manager on a part-time basis due to financial constraints experienced by Allied Associates. She has continued to handle escrow deposits and cash without any problems. Moreover, the broker/owner of Allied Associates has no hesitation in putting Petitioner in a position of trust. Further, Petitioner has assisted in the guidance of Allied Associates' sales associates.
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 allowing Petitioner to take the real estate salesperson's examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October 1993. ERROL H. POWELL 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 29th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7368 Petitioner's proposed findings of fact. Petitioner's proposed findings of fact consists of one paragraph with several sentences. 1. Substantially adopted in findings of fact 2, 4, 5, and 7-14; but rejected, regarding the second sentence, as unnecessary to the determination of the issues of this case and rejected, regarding the sixth sentence, as constituting argument, conclusions of law, or recitation of testimony. Respondent's proposed findings of fact. Substantially adopted in finding of fact 1. Substantially adopted in findings of fact 1 and 4. Substantially adopted in finding of fact 4. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 11. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9; but rejected, regarding notice and failure of Petitioner to appear at the informal hearing, as unnecessary to the determination of the issues of this case. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. Substantially adopted in finding of fact 5; but rejected, regarding the first sentence, as constituting argument, conclusions of law, or recitation of testimony and rejected, regarding the last sentence which indicates that only Petitioner received and used the monies, as contrary to the evidence present. Substantially adopted in finding of fact 8. Substantially adopted in findings of fact 12-14. Note: Respondent proposed finding of fact is very close to constituting recitation of testimony. Substantially adopted in finding of fact 13. Note: Respondent proposed finding of fact is very close to and constituting recitation of testimony. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. COPIES FURNISHED: Marina P. Cintron 151 Fairway Drive #2301 Miami Springs, Florida 33166 Manuel E. Oliver Assistant Attorney General 400 West Robinson Street, Suite 107 South Orlando, Florida 32801 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Jeralne C. Burt is registered with the Florida Board of Real Estate as a salesperson and was so registered at all times here involved. In the fall of 1977, Barbara Rogers came to Respondent's home seeking to purchase residential real estate and was shown several houses by Respondent. One of these houses she agreed to purchase. When asked how she wanted the contract made out, Barbara Rogers said make the contract in the name of Louise Rogers, her sister. The contract to purchase was prepared and given to Barbara Rogers to have executed. When this contract (Exhibit 1) was returned to Respondent it was signed Louise Rogers as the buyer, but the signature was not witnessed. After being assured that Louise had signed the contract to purchase, Respondent signed as a witness to the previously unwitnessed signature of Louise Rogers. At the time this offer was executed by the buyer, Respondent understood that Barbara Rogers was putting up the money for the cash required over the mortgage. Thereafter, Louise Rogers proceeded to the bank where the necessary documents were executed to qualify for an FHA morgage on the property. At the designated closing date Respondent drove to Barbara Rogers' house where Barbara was picked up and they went to the place Louise worked to pick her up. Louise came out to the car and told Respondent that she couldn't get off work and that Barbara could sign the papers for her. When Respondent said she thought Louise should come to the closing to sign, Louise replied that she and her sister signed each other's names all the time and that it was all riht for Barbara to execute the papers. Respondent and Barbara Rogers proceeded to the closing. No one inquired if Barbara Rogers was Louise Rogers, nor was she ever introduced as Louise Rogers. At the closing Barbara Rogers signed Louise Rogers' name on the various documents presented for signature. Due to the house requiring some repairs the closing was kept in escrow for approximately one week to ten days. During this escrow period the mortgage processor at the Barnett Bank, who had processed the application of Louise Rogers, received a phone call from a woman identifying herself as Louise Rogers inquiring when the closing on the house was to take place. When Louise Rogers said she had not executed any papers for the closing the bank officials quickly re-assembled the parties and this time all documents were executed by the real Louise Rogers. Although Respondent realized Louise Rogers should have signed the documents at closing, because of Louise's insistence that Barbara could sign for her and Respondent's previous experience of signing her grandmother's name for her the past two years of her grandmother's life, Respondent assumed the authorization for Barbara to sign Louise's name had been given.
