Findings Of Fact The Respondent, Alton Lynn Gillen, Jr., is a licensed Surety Agent doing business in the State of Florida. Respondent was charged by information, on or about December 23, 1980, in the Circuit Court of the Twentieth Judicial Circuit of the State of Florida, with a violation of the Racketeering Influenced and Corrupt Organization Act and with conspiracy to traffic in cannabis. On February 5, 1981, Respondent pled nolo contendere to the charges contained in the information. On May 13, 1981, an Order was entered in the Circuit Court of the Twelfth Judicial Circuit in and for Lee County, Florida, adjudicating Respondent guilty of a violation of the Racketeering Influenced and Corrupt Organization Act and of conspiracy to traffic in cannabis. Respondent was sentenced by the same order to state prison for a period or term of ten years. Respondent, having reserved his right to appeal as a condition of the nolo contendere plea, thereafter appealed this conviction and is currently awaiting its determination. Respondent, through his attorney, contacted Petitioner to ascertain whether or not he would be permitted to continue operating under his license after adjudication of guilt and while his appeal was pending. In a telephone conversation between Respondent's attorney and Onez O'Neill, Chief of Bureau of Licensing, on February 20, 1981, Respondent was advised that once the Department received formal notice of the convictions, a revocation proceeding would probably be instituted, but that his license would be reinstated upon receipt by the Department of certified copies of the information, judgment and sentence, and notice of appeal. Within a few days after being adjudicated guilty (May 13, 1981), Respondent obtained certified copies of those documents, as well as certified copies of notice of appearance by the appellate attorney, motion for supersedeas bond, and the supersedeas bond. On or about May 20, 1981, Respondent personally delivered those documents to O'Neill's office with a cover letter from his attorney (R-Ex 1). Since O'Neill was not in her office that day, Respondent gave the documents to the assistant chief, Joe Crutchfield. Respondent explained the nature of the problem and the reason for the delivery of the documents. Crutchfield assured him that everything appeared to be satisfactory and that he would personally discuss the matter with O'Neill the next day. On or about June 1, 1981, Petitioner caused a letter to be sent to Respondent by John Rich, a licensing specialist employed by Petitioner (R-Ex 2). This letter advised that Respondent could "continue operating as a bondsman under his current license until such time as the legal appeal process has been finalized...", subject to approval by the surety company underwriting Respondent. Based on the affirmative representations of Petitioner, by telephone and by its letter of June 1, Respondent continued to write bonds and incur financial obligations as a result thereof. Respondent also continued making contributions to a "build-up fund" held in trust for his underwriter. The buildup fund is money generated out of bond premiums which is held in an escrow account for the underwriter if it becomes legally liable for an estreature of a bond written by Respondent. On September 30, 1981, Petitioner renewed Respondent's license with full knowledge of his convictions (P-Ex 3). On April 5, 1982, Petitioner filed its Administrative Complaint seeking to revoke Respondent's license based on his adjudication of guilt of the two criminal charges to which he pleaded on February 5, 1981.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint, subject to refiling if Respondent's appeal is denied. DONE and ORDERED 30th day of August, 1982, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1982. COPIES FURNISHED: David A. Yon, Esquire Department of Insurance and Treasurer 428-A Larson Building Tallahassee, Florida 32301 Burton C. Conner, Esquire 207 N.W. Second Street Okeechobee, Florida 33472 The Honorable Bill Gunter Insurance Commissioner & Treasurer Department of Insurance The Capitol Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent should deny an application for a real estate broker's license on the grounds that the applicant pled nolo contendere to a crime involving moral turpitude, within the meaning of Subsection 475.25(1)(f), Florida Statutes (2004), was adjudicated guilty of the crime, and has not been rehabilitated.
Findings Of Fact Respondent is the state agency responsible for licensing real estate brokers and sales persons in the State of Florida, pursuant to Chapter 475, Florida Statutes (2003). Respondent has licensed Petitioner as a real estate sales person since July 1, 1996. Petitioner has also been licensed in the state as a mortgage broker since September 1, 1993. On June 25, 2004, Petitioner applied for a license as a real estate broker. On December 1, 2004, Respondent issued a Notice of Denial. The Notice of Denial proposes to deny the license application on specific grounds. The Notice limits the grounds for denial to those included in the following statement: The Florida Real Estate Commission has determined that the Applicant has been adjudicated guilty of crimes relating to the activities of a licensed broker or sales associate, and crimes of moral turpitude or fraudulent or dishonest dealing. Specifically it has found that the applicant . . . has been convicted of or found guilty of, or entered a plea of nolo contendere to: Contributing To The Delinquency of A Minor, 2001 During the hearing, Respondent stipulated that it does not seek denial of the application on the grounds that the alleged crimes relate to the activities of a licensed broker or sales associate or to fraudulent or dishonest dealing. Respondent relies solely on allegations that Petitioner pled nolo contendere to the misdemeanor charge of contributing to the delinquency of a minor; that the crime involved moral turpitude; and that Petitioner was adjudicated guilty and has not been rehabilitated.1 It is undisputed that Petitioner pled nolo contendere in 2001 to a first-degree misdemeanor in the Circuit Court of Charlotte County, Florida, for contributing to the delinquency of a minor. The factual allegations in the criminal proceeding were that Petitioner solicited a 13-year-old female (minor female) to pose topless or nude on August 2, 2001, when Petitioner was approximately 38 years old. It is undisputed that the minor female did not pose for Petitioner. The court adjudicated Petitioner guilty and withheld sentencing. Petitioner paid $353 in costs, served 75 hours of community service, and successfully completed probation of 12 months. The Notice of Denial does not allege that Petitioner actually committed the crime of contributing to the delinquency of a minor. Nor does the applicable statute require proof that Petitioner committed the acts alleged in the criminal proceeding as a prerequisite for denial in this proceeding.2 It is legally unnecessary to determine whether Petitioner is guilty of the crime to which he pled nolo contendere. The entry of the plea, by itself, is a sufficient statutory ground for the proposed denial. The plea does not operate statutorily as conclusive evidence that Petitioner committed the crime to which he pled nolo contendere.3 No finding is made in this proceeding that Petitioner either did or did not solicit the minor female. The court adjudicated Petitioner guilty, and this Recommended Order refers to the solicitation as the adjudicated solicitation. The threshold factual issue in this proceeding is whether the adjudicated solicitation involved moral turpitude. If so, it must be determined whether there is a rational connection between the moral turpitude and Petitioner's fitness to engage in the real estate business. If the requisite connection exists, it must be determined whether Petitioner has been rehabilitated and is not a "danger to the public." The adjudicated solicitation involved an act of moral turpitude. Solicitation of a 13-year-old female to pose topless or nude was a substantial deviation from the standard of conduct acceptable in the community, violated the duties owed to society, and was an inherently base or depraved act.4 The base or depraved nature of the adjudicated solicitation did not arise from a desire for monetary gain, as the motive typically is in other crimes, such as grand theft or the intent to sell controlled substances, that have been held to involve moral turpitude.5 Rather, the base or depraved nature of the adjudicated solicitation arose from an attempt to coerce the involuntary compliance of a minor female by exploiting her vulnerability; exploiting a financial relationship over which Petitioner enjoyed financial control; and exploiting a quasi- familial relationship in which Petitioner was imbued with the advantage of an authority figure.6 A person of common understanding would have known there was a substantial and unjustifiable risk that such conduct would encourage delinquency and that disregard of that risk was a gross deviation from an appropriate standard of conduct. At age 13, the minor female was nowhere near the 18 years of age required for legal majority. That vulnerability was accentuated during the adjudicated solicitation by Petitioner's age of 38. The minor female was also financially dependent on Petitioner for income as the family babysitter. Petitioner enjoyed the advantage of financial control of that relationship and possessed the power to terminate the relationship. Petitioner also enjoyed the benefit of an authority figure in a quasi-familial relationship. The minor female is the daughter of the brother of Petitioner's wife. The minor female is not legally the niece of Petitioner because the brother never married the mother of the minor female. The minor female is also a long-time friend of Petitioner's daughter. There is no direct evidence of actual intent to exploit the vulnerability of the minor female and any existing relationship. However, Petitioner should have known that the minor female was in a position of vulnerability and that the adjudicated solicitation necessarily exploited her vulnerability and the advantages he enjoyed in their relationship. A person of common understanding would have known there was a substantial and unjustifiable risk that the solicitation would tend to cause or encourage delinquency. The risk was of such a nature and degree that Petitioner's adjudicated disregard of that risk was a gross deviation from the appropriate standard of conduct.7 The moral turpitude evidenced by the adjudicated solicitation in 2001 is not rationally connected to the applicant's fitness to engage in the real estate business. Respondent admits that the adjudicated solicitation is not related to the activities of a licensed broker or sales associate and does not involve fraudulent or dishonest dealing. It is undisputed that the adjudicated solicitation did not impugn Petitioner's fitness to engage in the real estate business. From July 1, 1996, through the date of hearing, Petitioner has functioned as a licensed real estate sales person with no harm to the public before or after the adjudicated solicitation. Petitioner disclosed the adjudicated solicitation to Respondent sometime after June 25, 2004. Respondent did not prevent Petitioner from engaging in the real estate business as a sales person. Respondent cited no evidence or authority to support a finding or conclusion that the misdemeanor disqualifies Petitioner from performing the functions of a real estate broker, but does not disqualify Petitioner from performing the duties and responsibilities of a real estate sales person. As a mortgage broker, Petitioner maintains trust accounts and transfers client deposits to third parties, including surveyors and credit reporting agencies. The absence of a rational connection to the applicant's fitness to practice real estate imbues the allegation of moral turpitude with the potential for arbitrary and discriminatory denial of the license application.8 The potential for selective enforcement should be avoided. The issue of whether Petitioner has been rehabilitated is moot in the absence of a rational connection between an act of moral turpitude and the fitness to engage in the real estate business. If it were determined that a rational connection existed between the adjudicated solicitation in 2001 and the fitness of Petitioner to engage in the real estate business, Petitioner has been rehabilitated.9 Petitioner paid the required court costs, served the community service, and completed his probation. Petitioner is a father of three children, has been married for more than 16 years, is a licensed real estate sales person, a licensed mortgage broker, and has not exhibited a pattern or practice of violations before or after the incident on August 2, 2001. Rather, the incident in 2001 stands alone as the only blemish on an otherwise flawless professional record as a real estate agent and a mortgage broker. The issuance of a broker's license to Petitioner does not frustrate legislative intent. The issuance of a license does not expose the public to a dishonest real estate broker that engages in fraudulent practices. The crime for which Petitioner was adjudicated guilty does not impugn the honesty of Petitioner or his ability to deal fairly with the public in the real estate business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the license application. DONE AND ENTERED this 25th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2005. 1/ Transcript at pages 44-45. 2/ The last sentence in Subsection 475.25(1)(f), Florida Statutes (2003), states that the court record of conviction is prima facie evidence of guilt. However, the statutory language preceding the last sentence does not expressly require proof of guilt as a prerequisite for denial. The last sentence appears to be a vestige from former statutory language that required a plea of nolo contendere to be treated as a conviction. The legislature deleted the former statutory language from the current statute, but, so far, has not deleted the remaining vestige of the former statute. The issue is discussed further in the Conclusions of Law. If proof of guilt were a statutory prerequisite for denial, evidence Petitioner submitted to overcome the prima facie showing of guilt or to mitigate the prima facie showing of guilt is neither credible nor persuasive to the trier of fact. The relevant evidence consists of Petitioner's own testimony and hearsay statements that the testimony attributes to the minor female, members of her family, and others. The hearsay did not supplement or explain competent and substantial evidence within the meaning of Subsection 120.57(1)(c), Florida Statutes (2003). 3/ Cf. McNair v. Criminal Justice Standards and Training Commission, 518 So. 2d 390, 391 (Fla. 1st DCA 1987)(plea is not statutorily evaluated as conclusive evidence of the commission of wrongdoing but is, by itself, statutorily sufficient for disciplinary action). This issue is discussed further in the Conclusions of Law. 4/ Neither party cited an applicable statute or rule that defines moral turpitude. Judicial decisions generally hold that moral turpitude involves: . . . the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted) It has also been defined as anything done contrary to justice, honesty, principle, or good morals. . . . State ex rel. Tullidge v. Hollingsworth et al., 108 Fla. 607, 146 So. 660, 611 (Fla. 1933). 5/ Judicial decisions finding moral turpitude in the exploitation of others for monetary gain are discussed in the Conclusions of Law. 6/ Judicial decisions discussing exploitation of vulnerable persons in professional relationships are discussed further in the Conclusions of Law. 7/ Culpable knowledge is an element in the judicial definition of contributing to the delinquency of a minor. State v. Shamrani, 370 So. 2d 1, 2 n.3 (Fla. 1979); Kito v. State, 888 So. 2d 114, 116 (Fla. 4th DCA 2004). 8/ By analogy, the Florida Supreme Court has held that a rational connection to an applicant's fitness to practice law must be applied to the requirement for good moral character or the requirement could become "a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458-459 (Fla. 1978). 9/ Counsel for Respondent questioned Petitioner in an unsuccessful attempt to show that Petitioner currently lacks veracity and is therefore dishonest. Counsel stipulated that the grounds for denial do not include dishonesty or fraudulent practices. The attempt to show current dishonesty is relevant only to the issue of rehabilitation. See Transcript at pages 36-51. 10/ The agency action in McNair was mandatory but is discretionary in this proceeding. The substantially affected party in McNair pled nolo contendere to a felony while Petitioner entered a similar plea to a misdemeanor. However, those factual distinctions are not material to the absence in the applicable statute of the former statutory infirmity that spawned the requirement of proof of guilt in Ayala and Son. 11/ Unlike the facts in the instant case, the holding in some of the cited cases are arguably ambiguous in that the allegations recite all of the grounds in the applicable statute, and it is not clear in every case whether the decision is restricted to allegations of moral turpitude. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 419 West Vine Street Kissimmee, Florida 34741 Guy Sanchez, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Petitioner's plea of guilty to the crime of grand theft is to a crime that involves moral turpitude or fraudulent or dishonest dealing, as required by Section 475.25(1)(f), Florida Statutes, before the Commission may lawfully deny his application for licensure as a real estate salesman. Whether Petitioner is now deemed qualified to hold a real estate licence because of the lapse of time since his plea of nolo contendere and Order Withholding Adjudication of Guilt and his subsequent good conduct and reputation, pursuant to Section 475.17(1)(a), Florida Statutes.
Findings Of Fact By application dated August 6, 1990, Petitioner applied to Respondent for a Florida real estate salesman's license. Petitioner disclosed on the application, in response to question seven, that he had plead nolo contendere and adjudication of guilt had been withheld for the crime of grand theft on August 1, 1988. A subsequent criminal records check revealed that Petitioner entered a plea of guilty to the felony charge of Grand Theft, in the Circuit Court for Pinellas County, Florida on August 1, 1988. Adjudication was withheld and he was sentenced to four years probation, and among other conditions is required to repay the victim restitution in the amount of $21,033.00. Petitioner is presently on probation, which is scheduled to be completed on August 1, 1992. He is complying with the terms of his probation, and is making payments of $100 to $150 per month in restitution. Restitution is not complete. Petitioner has not been arrested for any other crime or violated any conditions of his release during the period of his probation. Petitioner testified that his arrest and conviction was based on the fact that he had over $20,000 of an elderly lady's money in his personal checking account, placed there at the request of her nephew and with her consent, for the purpose of investing it in a commodity trading pool. However, during the time the funds were in his personal account, a prior judgment holder levied on the account and removed $6,600 in order to satisfy the judgment. He did not intend to use the funds for his own personal gain. However, he plead guilty to the charge of grand theft on the advice of counsel and with the understanding that the court would withhold adjudication, which was done. Petitioner is presently licensed by the National Association of Security Dealers (Series 3,7 and 63) to sell commodities and securities, and in the States of Florida, Wisconsin, Illinois and Indiana to sell life, health and variable insurance and annuity products and has not been previously disciplined.
Recommendation Based on the foregoing, it is recommended that a Final Order be entered Denying Petitioner's application for a real estate salesman's license, on the basis that he has been convicted of a crime involving moral turpitude. RECOMMENDED this 18th day of April, 1991, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1991. COPIES FURNISHED: Joselyn M. Price, Esquire Assistant Attorney General Florida Department of Legal Affairs 400 West Robinson Street Orlando, Florida 32801 Richard M. Liebold 2201 Willow Tree Trail Clearwater, FL 34623 Darlene F. Keller Division Director Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, FL 32801 Jack McRay General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue The issue is whether Respondent committed the offenses alleged by the Administrative Complaint, and, if she did, the penalty that should be imposed.
Findings Of Fact Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and prosecuting complaints against real estate professionals, including licensed real estate salesmen. At all times pertinent to this case, Respondent, America Canizales, was licensed by Petitioner as a real estate salesman. At the time of the hearing, however, Respondent's license was on inactive status. Respondent was the real estate salesman who represented Elvira Martinez when Ms. Martinez bought her apartment in the middle of 1987. As a result of her professional dealings with Ms. Martinez, Respondent learned that Ms. Martinez was interested in investing in real estate. On December 4, 1987, Respondent persuaded Ms. Martinez to enter into a real estate transaction with her. Respondent intended to purchase a house for the sum of $34,000, but she did not have the funds necessary to close the transaction. Respondent needed an additional $5,000 to apply toward the purchase price and to pay the costs of closing. The house was to be purchased by Respondent in her individual capacity in a transaction that was independent of her status as a real estate salesman. The agreement executed by Respondent and Ms. Martinez on December 4, 1987, provided for Ms. Martinez to give to Respondent the sum of $5,000. In exchange for this money, Respondent agreed that she would convey to Ms. Martinez one-half interest in the $34,000 house after she had acquired title to the property. In the event the transaction did net close and Respondent did not obtain title to the house, Respondent was to return to Ms. Martinez the sum of $5,000 without the payment of interest. Between December 4, 1987, and December 8, 1987, Ms. Martinez gave to Respondent a check made payable to America Canizales in the amount of $5,000. This check, dated December 9, 1987, was to be held in trust by Respondent until the closing on the purchase of the $34,000 house. At no time did Respondent deposit the check in a bank account. There was no evidence that Respondent took any action to safeguard Ms. Martinez's check or the funds represented by the check. Although the check was dated December 9, 1987, the check was cashed on December 8, 1987, at the bank used by Ms. Martinez. The person who cashed the check endorsed it in the name of America Canizales. On or about December 10, 1987, Respondent told Ms. Martinez that Respondent's husband had stolen all of Respondent's money and that he had also stolen Ms. Martinez's check. Respondent also told Ms. Martinez that because of the theft, she would be unable to close their contemplated transaction and promised to repay the $5,000. Respondent offered no further explanation or accounting for the funds. Respondent made repeated promises to repay Ms. Martinez the sum of $5,000 on the occasions Ms. Martinez was able to contact her. Thereafter, Respondent moved from the State of Florida without letting Ms. Martinez know where she could be reached. When Ms. Martinez located Respondent in Chicago, Illinois, Respondent again promised to repay Ms. Martinez. As of the time of the formal hearing, Respondent had returned to Dade County, Florida, but she had made no effort to repay Ms. Martinez the sum of $5,000. Respondent repeatedly misled Ms. Martinez as to her intentions to repay her. The factual allegations of the Administrative Complaint filed by Petitioner to "initiate this case were denied by Respondent. The request for a formal hearing was timely filed by Respondent.
Recommendation Based on the foregoing Findings of `Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a final order which finds that Respondent violated Section 475.25(1)(b), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further recommended that the final order revoke the real estate salesman's license issued to Respondent, America Canizales. DONE and ORDERED this 30th day of January, 1990, in Tallahassee, Florida. CLAUDE B. ARRINGTON 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 30th day of January, 1990. COPIES FURNISHED: John R. Alexander, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 America Canizales 158 West 10th Street Hialeah, Florida 33010 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Darlene Keller, Division Director Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The central issue in this case is whether Respondent is guilty of the violations alleged in the administrative complaint dated June 21, 1990; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of pursuing disciplinary actions against real estate licensees. At all times material to the allegations of the administrative complaint, Respondent is and has been a licensed real estate salesman in the State of Florida having been issued license number 0347386. On May 7, 1987, the Respondent was charged with seven counts of criminal misconduct. The charging document, an information filed by the State Attorney of the Third Judicial Circuit of Florida, alleged that Respondent had: solicited to commit extortion while armed; solicited to commit murder I while armed; delivered a controlled substance; possessed a controlled substance with intent to sell or deliver; committed grand theft II; and carried a concealed firearm during a felony. Subsequently, Respondent was tried and found guilty of: solicitation to commit extortion (a 3rd degree felony); solicitation to commit murder I (a 1st degree felony); delivery of a controlled substance (a 3rd degree felony); grand theft II (a 3rd degree felony) ; and carrying a concealed firearm (a 3rd degree felony). The judgment of guilt was entered on September 9, 1987. Respondent received a sentence for each of the convictions noted above and was committed to the Department of Corrections with credit for the 150 days of incarceration in the county system he had spent prior to the imposition of the sentences. All sentences ran concurrent with one another. During the time of his incarceration (on or about September 30, 1987), Respondent's real estate license expired. At that time, Respondent mistakenly presumed he was not required to send a notice of the convictions to the Real Estate Commission and, therefore, did not do so. In July, 1989, Respondent was released from prison. Upon his release, Respondent considered what action would be needed to renew his real estate license. To that end, he took a continuing education course and discovered he should have notified the Real Estate Commission of his felony convictions. On March 10, 1990, Respondent wrote a letter to the Real Estate Commission which stated, in part: My name is Gene Stephen Wilson, expired license #0347386. My license expired September 30, 1987. In September 1987, while working in another profession, I was convicted, sentenced and served two and one- half years in a Correctional Institution for a felony charge. Since my license was expired, I did not realize that I was required to report to FREC at that time. Now, after completing my sentence, I have been granted an Order of Executive Clemency by the Governor of the State of Florida. On October 5, 1989, the Governor, with the concurrence of the requisite members of the Cabinet of the State of Florida, filed an Executive Order which granted to Respondent the restoration of his civil rights. Anne Frost, a real estate broker, and Deborah J. Mickle, a real estate agent with Anne Frost, Inc., submitted written statements which attest that, based upon their experiences with the Respondent, he is ethical and professional in connection with the real estate business.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Real Estate Commission enter a final order finding the Respondent guilty of having violated Section 475.25(1)(p), Florida Statutes, suspending his license for a period of two years, imposing an administrative fine in the amount of $500, and requiring a period of probation under such terms and conditions as the Commission may deem appropriate. DONE and ENTERED this 30th day of November, 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 30th day of November, 1990. APPENDIX TO CASE NO. 90-4403 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: 1. Paragraphs 1 through 5 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None timely submitted. COPIES FURNISHED: Steven W. Johnson Senior Attorney Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Post Office Box 1900Orlando, Florida 32802 Stanley M. Silver, Jr. 217 East Ivanhoe Boulevard, North Orlando, Florida 32804 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0750
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is: RECOMMENDED that the Respondent's qualifications and eligibility for licensure as an insurance agent be REVOKED. DONE and ORDERED this 20th day of December, 1985 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 20th day of December, 1985. COPIES FURNISHED: Leland L. McCharen, Esq. Department of Insurance and Treasurer Larson Building Tallahassee, Florida 32301 Joseph Dennis Turner, Sr. 2219 West Skagway Avenue Tampa, Florida 33604-1039 Hon. William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Don Dowdell, Esq. General Counsel State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 DEPARTMENT OF INSURANCE AND TREASURER, DIVISION OF INSURANCE, vs . JOSEPH DENNIS TURNER, SR., a/k/a JOSEPH D. TURNER CASE NO. 85-3225 APPENDIX Pursuant to Section 120.59(2), Florida Statutes (1983), the following are my specific rulings on the proposed findings of fact submitted by each of the parties to this case. Petitioner's Findings of Fact Paragraph Ruling Accepted; see paragraph 2, R.O. Rejected as argument. Partially accepted; see paragraph 6, R.O. Respondent's Findings of Fact Paragraph Ruling Accepted; see paragraph 1, R.O. Accepted; see paragraph 3, R.O. Accepted; see paragraph 4, R.O. Accepted; see paragraph 5, R.O. Rejected as argument and conclusions of law. Accepted; see paragraph 1, R.O. Accepted; see paragraph 2, R.O. i`_ E=_
The Issue Has Ms. Davis demonstrated that she is honest, truthful, trustworthy, and of good character, and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (Supp. 1980)?
Findings Of Fact In October, 1980 Ms. Davis filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated October 21, 1980 the Board acknowledged receipt of the application and requested additional information concerning Ms. Davis' answer to question #6. Ms. Davis responded on November 15, 1980 when she sent copies of her arrest record to the Board. Question #6 of the application states: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, or pardoned or paroled? Ms. Davis responded that, "yes," she had. The question further requested the details including the outcome in full. In response Ms. Davis attached a separate sheet in which she said: To whom It May Concern: I was arrested for illegal entry in 1974 or 1975 in Duval County, Jacksonville, Florida. The sentence was a misdemeanor. I was told if I pleaded guilty I would receive probation but if I tried to fight it in front of a jury I would receive time in prison if I lost. So I plea bargained with the Judge and Attorney. My car was at the scene but there was never proof of who entered the apartment. My sentence was 4 years probation which I have completed. The Judge told me my sentence would be with adjudication withheld. I have finished my probation and have not or ever will be in any other trouble. I am married now and my husband and myself have a very good a job managing a condominium. We both are bonded and I am also a Notary. I want very much to become a licensed Real Estate Salesperson. I believe that I will be an asset to the Real Estate Business. I would never do anything to tarnish the Real Estate name. Thank you in advance for any consideration you can give me concerning my past which I would like to bury and not have it interfere with a profession I want so much. At the time Ms. Davis answered question #6 she did not recall her arrest for cohabitation. It happened when she was eighteen years old and living with her boyfriend. The charges were dropped when she and her friend told the judge that they intended to be married, which they later did. The complaint against them was filed by Ms. Davis' mother. At the final hearing Ms. Davis explained that she failed to reveal the cohabitation arrest because she forgot it. To her it was quite insignificant because the charges were dropped and because of the considerable passage of time since the event. This testimony is credible. Ms. Davis voluntarily disclosed her more serious arrest (the one for breaking and entering) and informed the Board about the cohabitation arrest as soon as her memory had been refreshed when she first obtained her arrest records. There is no evidence that she intentionally attempted to conceal the cohabitation arrest. On December 10, 1974 Ms. Davis pled guilty to breaking and entering with intent to commit a misdemeanor. Adjudication was withheld and she was placed on probation for the term of three (3) years beginning on February 25, 1975. She paid $1,200.00 in restitution and successfully completed her probation term. Since her guilty plea Ms. Davis has been a trustworthy law abiding citizen of Florida. Beginning in November, 1979 she has been a rental manager at the Tradewinds Condominium in St. Augustine, Florida. At that 60-unit complex she manages the rentals for unit owners and has been treasurer for the owners association. She is bonded for $25,000.00 by Nationwide Insurance Company and handles an account amounting to over $250,000.00 per year. Two owners at the condominium have submitted letters of recommendation on her behalf to the Board. At the final hearing Ms. Davis was credible and mature. She was forthright in answering questions from both the Hearing Officer and from counsel for the Board. Her demeanor was excellent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Real Estate enter a final order finding Petitioner qualified pursuant to Section 475.17(1), Florida Statutes (Supp. 1980), to take the license examination provided for in Section 475.175, Florida Statutes (1979) to be licensed as a real estate salesperson in the State of Florida. DONE and RECOMMENDED this 9th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 9th day of June, 1981. COPIES FURNISHED: Ms. Lynette Helgerson Davis 121 Tradewinds Condominium Highway A1A South St. Augustine, Florida 32084 Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
Findings Of Fact Petitioner, Douglas Clayton Brown (Brown), applied to Respondent, Department of Insurance and Treasurer (Department) , for examination as a general lines agent. By letter of September 9, 1986, the Department advised Brown that his application was denied because he had pled guilty to certain felonies which involved moral turpitude, and that he had failed to divulge on his application for examination that he had been charged with such felonies. Brown filed a timely request for formal hearing to contest the Department's decision. On March 21, 1983, an Information was filed in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida, charging Brown with one count of burglary, Section 810.02(2) Florida Statutes; and two counts of aggravated assault, Section 784.021, Florida Statutes. Brown entered a plea of guilty to the charges. On December 12, 1983, the court entered a judgment wherein it adjudged Brown guilty of having committed one count of burglary with a deadly weapon and two counts of aggravated assault with a deadly weapon. The court withheld the imposition of sentence, and placed Brown on 10 years probation. 1/ On August 20, 1984, Brown filed a motion in the criminal proceeding to terminate his probation and vacate the adjudication of guilt. By order of March 4, 1985, the court granted Brown's motion to vacate the adjudication of guilt, but continued his probation on the same terms and conditions as previously set. Subsequently, on March 13, 1985, the court entered a formal order that withheld adjudication of guilt and the imposition of sentence on the charges, and reimposed the term of probation previously established. By application dated March 4, 1985, filed with the Department on March 13, 1985, Brown sought examination for licensure as a general lines agent. Pertinent to this case the application requested and Brown responded: 12(a) Have you ever been charged with a felony? No Brown's application contained a material misrepresentation since he failed to disclose that he had been charged with a felony which involved moral turpitude. Brown's attempt to rationalize his nondisclosure was unpersuasive. According to Brown, he inquired of his attorney before completing his application and was advised that he could respond in the negative to the question set forth in paragraph 6, supra. Brown's assertion is not, however, supported by the proof and is inherently improbable and unworthy of belief. (See: Petitioner's exhibit 2).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Petitioner, Douglas Clayton Brown, for examination as a general lines agent be DENIED. DONE AND ORDERED this 9th day of June, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1987.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner should be accepted for licensure as a real estate salesman or whether that application for licensure should be denied on account of her past criminal record.
Findings Of Fact On or about January 19, 1989, the Petitioner filed her application for licensure as a real estate salesman. The Respondent is an agency of the State of Florida charged with regulating the practice of licensed real estate salespersons and with regulating and controlling entry into that profession in accordance with the provisions of Chapter 475, Florida Statutes, and related rules. The Petitioner answered question 6 on that application, the question inquiring as to her criminal history, by enclosing a copy of her arrest record and candidly admitting that she had been subjected to criminal prosecution in the past. That arrest record reflected charges of driving under the influence (DUI) to which she plead guilty and was placed on probation for a term of six months in each of two cases. The record also reflected 22 incidents of issuing worthless checks. She was prosecuted for these with the result that adjudication was withheld and the Petitioner was ordered to make restitution and to pay court costs. The criminal record further discloses that Petitioner was adjudicated guilty of grand theft in 1985 involving a retail store, apparently Sears, in Pensacola, for which she was adjudicated guilty and placed under community control for one year, ordered to make restitution and to perform six weeks of community service followed by one year of probation. The denial was only based upon the worthless check charges and the 1983 DUI conviction as well as a conviction in Texas occurring in 1981, when the Petitioner was 17 years old. The Petitioner candidly admitted this criminal histor both on her application form and in her testimony at hearing. The Texas charge was not indicated on her application form because the Petitioner had been told by the prosecutor in Texas that the result of her offense would not be of record for purposes of later employment. That charge involved alleged grand theft which was reduced by the prosecution to a charge of disorderly conduct for which she was adjudicated guilty and required to pay a fine and court costs. The factual circumstance in the Texas charge involved the theft of a tube of lipstick and a bottle of nail polish. The Petitioner testified that the prosecutor in San Antonio had told the Petitioner's mother that it was a juvenile offense which would have no effect on her record. With regard to the bad check charges, full restitution was made to all the vendors involved before the matter went before the court for adjudication. Although the criminal records reflect various arrests through 1985 and in 1986 on the worthless check charges, in fact the Petitioner established that the checks were all written in a very short period in the summer of 1985, but were prosecuted at different times, hence the different arrests. The Petitioner is genuinely remorseful about those charges and the related conduct and established that, by way of mitigation, they occurred at a time when she was only 21 years old, was married, but was having marital discord with her then husband, who exerted a great deal of influence in inducing her to issue the worthless checks. They have since become divorced and she is making an effort to better herself and engage in a productive life and career. She freely acknowledges that at the time of the San Antonio, Texas, disorderly conduct conviction she was 17 years old and at the time of the worthless check and grand theft convictions in Florida she was only approximately 21 years of age, was quite immature and having significant personal problems which she has since overcome. She is genuinely sorry for engaging in such conduct and has consistently attempted to improve her life ever since. She has held a number of jobs as waitress and cashier for local restaurants in the Pensacola area and the Navy Club at the Pensacola Naval base. This includes the handling of large sums of money or her employers for which she has an unblemished record, accounting for all monies entrusted to her in an honest, reliable way. This testimony to this effect is borne out by various letters of recommendation which the Respondent stipulated into evidence and in which former employers and friends all uniformly attest to her good reputation and character, all of whom knew of her past criminal history. They unhesitatingly describe her reputation and character as good. Her employers so attesting to her reputation for honesty and good morals attest to the fact that she worked in a capacity as waitress and cashier and successfully and honestly handle their funds. In particular, as a waitress at the Pensacola "Navy Club," she was placed in charge of the bingo concession or activity and served as the cashier for thousands of dollars collected in the course of such activities. She handled and accounted for these large sums of money in an honest, reliable and accurate fashion to the satisfaction of her employer. The Petitioner's one witness aside from herself was Rusty Coleman. He has known the Petitioner for at least three years and they are best friends. He was aware of her past criminal problems because she has told him about them herself. He finds her trustworthy and an honest, decent person who is seeking to better herself and become a reliable, productive citizen and member of society, as evidenced by her pursuing her higher education since the criminal episodes of record. It is noteworthy that although 22 incidents of prosecution for worthless checks appear at first to be a significant level of such miscreant conduct, that all the checks were issued within a short period of time in 1985 when she was under considerable stress due to her unfortunate and successful marriage situation, and related financial difficulties, and the same consideration applies to the issue of the grand theft conviction and the DUI convictions in 1983. Under ordinary circumstances this aggregation of criminal convictions and conduct would appear sufficient to preclude an applicant from licensure approval only four years after the last incident of such conduct, as was reflected in her criminal record. It is noteworthy however, that, in addition to the Petitioner's own credible, candid testimony concerning her genuine change in attitude and attempt to live an honest, productive life, that none of this type of conduct was repeated after the time when she ended her unsuccessful marriage and the related stress it caused in both an emotional and financial sense. She has honestly pursued gainful employment ever since, in positions of trust, handling large sums of money and further has embarked on a higher education career as well as, at the same time, successfully completing and passing her real estate instruction course in an effort to prepare herself for a productive, honorable profession. Under these circumstances, established by the Petitioner, her attending witness, and the corroborative statements admitted in evidence, although only four years have elapsed; it is found that in her particular situation that is sufficient time, coupled with the other evidence of her rehabilitation, to justify admitting her to licensure if she should pass the state examination involved. This is particularly true given that the Respondent has sufficient regulatory authority to oversee her entry into and practice of the profession so that it can ensure that the public is protected through its authority to impose accounting and reporting requirements on all funds and transactions the Petitioner might engage in as a realtor as conditions upon her entry into the profession. Under the peculiar circumstances of this case it is thus fund that the Petitioner has established her rehabilitation and resultant qualification for licensure.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the pleadings and arguments of the parties, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Petitioner's application for licensure as a real estate salesman be granted. DONE and ENTERED this 30th day of November, 1989, in Tallahassee, Florida. P. MICHAEL RUFF 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 30th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2127 Respondent's Proposed Findings of Fact Accepted. Accepted except that the criminal record in evidence shows that only 22 charges of issuing worthless checks were the subject of criminal proceedings. Accepted. Accepted. Accepted in a general context, but subordinate to the Hearing Officer's finding of fact on this subject matter. Accepted. COPIES FURNISHED: Delia H. Dolan 2635 Belle Christiane Circle Pensacola, Florida 32503-5860 Manuel E. Oliver, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32802 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact On or about June 11, 1990, the Petitioner's application for licensure as a real estate salesman was received by the Respondent. In response to question 7 on the application, the Petitioner stated that he had been convicted of passing worthless checks in Indiana in 1972 (2 times), 1975, 1977, 1981, 1982, 1983, 1987 (3 times), and 1988. Criminal history records obtained from the F.B.I confirm the Petitioner's admission, with the exception of any charge in 1981, which was dismissed by the State of Indiana. Based upon the information reflected in response to question 7 on his application, the Respondent denied Petitioner's application for licensure at its meeting on August 22, 1990, and thereafter, the Petitioner timely sought review of this denial. At hearing, the Petitioner admitted that he had been convicted of repeatedly passing worthless checks in Indiana from 1972 to 1988. He urged, however, that these incidents resulted from difficulties he was having in his personal business, that he had openly revealed these matters on his application, and he had not had any similar occurrences since he moved to Florida in approximately March, 1990. Therefore, it is the Petitioner's position that these matters should not disqualify him for licensure. The Petitioner has not sought expungement of these convictions in Indiana. The Petitioner was licensed in the State of Indiana as a real estate saleman on or about February 15, 1989, and there is no evidence in the record of any license disciplinary action involving the Petitioner in Indiana during the approximately 12 months he resided in Indiana following his licensure. The Petitioner did not offer competent substantial evidence which would establish his honesty, trustworthiness and good character, particularly in view of his admitted history of repeatedly passing worthless checks. The Petitioner did not show that he has established any ties in the community, or that he has any regular means of employment. He has recently moved from south Florida to Bronson, Florida, and testified, without any specific detail, that he is engaged in some form of general construction. All purported character references are in the form of unsworn letters, which cannot be considered since they clearly constitute unsupported hearsay. There is no indication from the Petitioner's testimony at hearing that he realizes the seriousness of his offenses, and the direct impact which these offenses have on his qualification to be licensed as a real estate salesman in Florida. Based upon the foregoing, it is found that the Respondent properly determined that the Petitioner is not qualified to be licensed as a real estate saleman in the State of Florida.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified for licensure as a real estate salesman. RECOMMENDED this 14th day of March 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7184 The Petitioner submitted a narrative letter summarizing the evidence presented at hearing. Specific rulings cannot be made to the unnumbered paragraphs contained in his letter since they mix proposed facts with proposed conclusions of law, but Petitioner's letter has been considered in the preparation of this Recommended Order. Rulings on the Respondent's Proposed Findings of Fact: 1-2. Adopted in Finding 1. Rejected as unnecessary. Adopted in Finding 3. Adopted in Findings 3 and 5. Adopted in Finding 4, but otherwise Rejected as unnecessary. COPIES FURNISHED: James L. Craig, Jr. R.R.-1, Box 1585 Bronson, FL 32621 Manuel Oliver, Esquire Assistant Attorney General 400 West Robinson Street Suite 107-South Orlando, FL 32801 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street P. O. Box 1900 Orlando, FL 32801
