Findings Of Fact Petitioner, Marcus J. Brown f11ed an application for the issuance of a Class "C" license on Apr11 8, 1982 with Respondent, Department of State, Division of Licensing. That license authorizes a licensee to Perform private investigative work. After reviewing the application, Respondent denied the same on June 26, 1982 on the ground Petitioner did not possess the requisite experience required by Subsection 493.306(4), Florida Statutes, The denial Precipitated the instant proceeding. Petitioner is a licensed real estate salesman, He supports himself through his activities as a real estate salesman and "Personal business activities." Between 1979 and Apr11, 1982, Petitioner performed investigative work on three cases involving real estate transactions. The work wad performed on a Part-time basis on behalf of two attorneys and a real estate broker in the Miami area. One of the cases is st11l pending. The work involved, inter alia, interviewing witnesses, researching corporate records, and securing documents for use at trial. Petitioner had a personal interest in the outcome of all three cases, and at least one involved an effort by him to secure an unpaid real estate commission due him. He has received no compensation for his services as an investigator to date. Petitioner has no college course work related to private investigation nor has he worked as a licensed intern.
Recommendation Based on the foregoing findings of fact and conclusions of law, it RECOMMENDED that the application of Marcus J., Brown for licensure as a private investigator be DENIED. DONE and ENTERED this 6th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Bu11ding 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 F11ed with the Clerk of the Division of Administrative Hearings this 6th day of December,1982.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that respondent be found guilty of violating F.S. 475.25(1)(e), and that his registration be suspended for a period of forty-five (45) days. Respectfully submitted and entered this 8th day of September, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair Staff Attorney Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 George H. Lowe Post Office Box 445 Bonita Springs, Florida 32923
Findings Of Fact The Respondent, Charles L. White, is registered with the Real Estate Commission as a Real Estate Salesman. Copies of the Administrative Complaint filed by the Commission against the Respondent were forwarded to the Respondent at the address he most recently provided the Commission. Copies of the Complaint were returned to the Commission, and copies of the Notice of Hearing forwarded to the Respondent have likewise been returned. Efforts to locate the Respondent have been unsuccessful. A forty-count indictment was issued by the Grand Jury of the United States District Court in the Middle District of Florida, Tampa Division, against the Respondent, Charles L. White, and five other persons. On February 5, 1977, a jury found the Respondent guilty of all counts of the indictment in which he was charged. On June 3, 1977, he was adjudicated guilty, and sentenced to serve eighteen months in the Federal Penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of two years. The crimes of which the Respondent was convicted involve dishonest dealing in connection with real estate transactions, and include fraud, fraudulent use of the mail, and conspiracy to commit violations of Federal law.
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 ORDERED in Tallahassee, Leon County, Florida, this 2nd day of June 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Mr. Charles L. White D-30 Sierra Apartments Stuart, Florida 33494 Mr. Charles L. White c/o County Realty & Investments Stuart, Florida 33494
Findings Of Fact Petitioner, Jerry R. Erickson, who is now thirty years old, made application on May 29, 1986 for licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld". Petitioner answered in the affirmative and gave the following response: February 10, 1984 incurred several felonies, all drug and alcohol related, there were several incidents in my past that were drug and alcohol related. (See attached letters). A subsequent background check by respondent revealed the following arrests and/or convictions: 1980 - Arrest for driving while under the influence. 1982 - Arrest for trespassing after warning and assault and battery. 1982 - Arrest and conviction for driving while under the influence. 1983 - Disorderly intoxication ar- rest. 1984 - Arrest and conviction for armed burglary, kidnap, false imprisonment, aggravated assault, and burglary to a business. Although arrested on the above five occasions, he was convicted only twice. For the most recent conviction in 1984, Erickson was allowed to enter into a negotiated plea whereby he received 455 days incarceration, two years community control, and ten years probation, each to run consecutively. 1/ Because of his record, petitioner's application for licensure was denied by respondent on September 15, 1986. Erickson's problems are directly related to alcohol and drug addiction. Its origin began at age thirteen when he was given valium by his parents for hyperactivity. Following this exposure to drugs, Erickson freely admits that he abused alcohol and drugs until early February, 1984. Having taken a large dose of valiums over a 48 hour period, and still not being able to sleep, Erickson entered a drug store on February 9, 1984 and demanded, at gunpoint, an ampule of morphine to help him calm down. For that episode, he was arrested and charged with a number of serious crimes. Apparently recognizing that Erickson's underlying problem of drug and alcohol addiction was the reason for his actions, the State allowed Erickson to enter a negotiated plea if he could master his addiction problem. He has successfully done so and is now under community control until November, 1986. After that, he must serve 10 years probation. In addition, he must receive an annual psychological review during the term of his probation. In addition to his own testimony, a psychiatrist, executive vice- president of a bank, and the chief of the public defender's criminal trial division testified on Erickson's behalf. All were aware of Erickson's background and prior legal problems. Erickson was described as being responsible, mature, reliable and honest. The banker stated he would have no hesitation in using Erickson in a real estate transaction and that Erickson has met all obligations on several loans with the bank. The public defender described Erickson's conduct as "exceptional", and that he is one out of perhaps five hundred clients who has been assigned to community control. All felt Erickson had rehabilitated himself. Erickson desires to become a real estate salesman, and eventually to obtain a broker's license. He is married, has a child, and is employed at a West Palm Beach newspaper. He was most candid and forthright in his testimony and appeared to the undersigned to have rehabilitated himself by reason of good conduct and lapse of time since his 1984 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That petitioner's application for licensure as by examination as a real estate salesman be GRANTED. DONE AND ORDERED this 31st of October, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 31st day of October, 1986.
The Issue The issue presented for decision herein is whether or not the Respondent, Frederick L. Lundeen, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by misrepresenting that money he borrowed from a one Julie Couch would be used for the purchase of a lot but, instead, he utilized the money in connection with the purchase of a house for use by his family and for payment of other vacation and travel expenses and refuses to repay the loan, in a manner violative of Section 475.25(1)(b), Florida Statutes.3
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Frederick L. Lundeen, is a licensed real estate salesman and holds license number 0329068. On or about July 13, 1984, Respondent solicited and obtained $3,500 cash from Julie S. Couch (Couch) for the stated purpose of assisting Respondent in purchasing a lot on behalf of Keith and Beverly Rayburn, friends of the Couches. In connection therewith, Respondent executed and delivered to Couch a mortgage note dated July 13, 1984, to secure the $3,500 loan via certain real property owned by Respondent.4 Pursuant to the terms of the note executed by Respondent and given to Mrs. Couch, Respondent was to repay Couch the principal of $3,500 plus $1,000 interest due on or before July 27, 1984. On July 30, 1984, Respondent attempted to repay part of the loan via check dated July 30, 1984 drawn in the amount of $1,000. Respondent's check was returned unpaid by the Drawers Bank with the notification "insufficient funds." (Petitioner's Exhibits 3 and 4) Thereafter, Respondent advised Mrs. Couch that the money was used to pay for his moving, vacation and other relocation costs for his family. Keith Rayburn attempted to buy property from the Respondent which was owned by Southern Standards Corporation. At no time during the attempted purchase by Keith Rayburn did Respondent offer to loan him money to purchase a lot from Southern Standards Corporation. Respondent executed and drafted the terms of the note which was given to Julie Couch which memorialized the loan from Mrs. Couch to Respondent. In this regard, Respondent contends that Julie Couch's ex-husband suggested the terms and the rate of interest which he inserted into the note which memorialized the loan from Julie Couch. On the other hand, Julie Couch testified that it was Respondent who suggested the terms and the interest which he provided with the executed note given her. Based on all of the evidence introduced herein including the fact that Respondent misrepresented the purpose for which the money would be utilized, and his failure to call Gary Couch as a witness to substantiate his claim that it was he, Gary Couch, who suggested the terms under which the loan would be made, the testimony of Julie Couch in this regard is credited.5 Respondent has repaid approximately $1,250 of the $3,500 loan from Julie Couch. Respondent, based on advice of his counsel, refuses to repay any further amounts on this loan contending that the interest rates were usurious and, further, that the State, in the person of Petitioner, is attempting to use its "strongarm tactics" to exact money from Respondent which is a usurious transaction. Respondent also contends that because the interest rate charged by Mrs. Couch was in excess of 45 percent per annum, Mrs. Couch committed a third degree felony. As previously stated, the weight of the evidence reveals that it was Respondent who drafted the note and provided the terms for repayment. It is also clear that Respondent misrepresented to Mrs. Couch the purpose for which he would utilize the money that he borrowed from her. It is therefore concluded that by such acts Respondent engaged in acts of misrepresentation, false pretenses, trick and dishonest dealing in a business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That the license of Respondent, Frederick L. Lundeen, be suspended for a period of one (1) year and that he be fined $1,000. RECOMMENDED this 21st day of October, 1985, in Tallahassee, Florida.6 JAMES E. BRADWELL , 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 21st day of October 1985.
The Issue Whether Respondent violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant hereto. Respondent, Richard G. Cash (Cash), has been a licensed Florida real estate broker since 1993. His broker's license number is BK-0267856. Prior to becoming a broker, Cash had been a licensed real estate salesperson since approximately 1973. On or about July 22, 1994, Michael J. Provost, Assistant State Attorney for the Twentieth Judicial Circuit of the State of Florida, charged Cash, by information, with aggravated battery. The charge arose from a domestic dispute involving Cash and his former wife, when she appeared uninvited at his home late one night under the influence of drugs and demanded to take their four year-old daughter. His former wife was considerably taller and heavier than Cash, and a struggle ensued in which Cash hit her with a stun gun. Both Cash and his former wife received injuries as a result of the altercation. On or about December 15, 1994, in the Circuit Court of the Twentieth Judicial Circuit for Collier County, Florida, Cash entered a plea of nolo contendere to Count I of the information, which was aggravated battery, a second degree felony. Adjudication was withheld, and Cash was placed on probation for five years. As a condition of probation, Cash was to pay his former wife $4,000 within 30 days of the sentencing and another $4,000 within 12 months of sentencing. In exchange, the former wife agreed to release Cash from any civil liability arising from the incident. Cash paid the $8,000 to his former wife. Cash did not notify the Florida Real Estate Commission that he had pled nolo contendere to a second degree felony. His explanation for failure to do so was that he understood from his attorney that because adjudication had been withheld, he had not been convicted of a crime. On or about January 16, 1998, a warrant was issued for Cash for violation of probation for having shotguns and handguns at his home without first obtaining consent from his probation officer. On April 17, 1998, Cash pled guilty to violation of probation. He was adjudicated guilty of violating probation and aggravated battery, his probation was revoked, and he was sentenced to three years, seven months, and fifteen days with credit for fifteen days already served.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered finding that Richard G. Cash violated Sections 475.25(1)(f) and (p), Florida Statutes (1993), and that his broker's license be suspended for one year or until he is released from the custody of the Florida Department of Corrections, whichever occurs first. DONE AND ENTERED this 29th day of September, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 29th day of September, 1999. COPIES FURNISHED: Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Daniel Villazon, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite N-308 Orlando, Florida 32801 Richard G. Cash Fort Pierce CCC 1203 Bell Avenue Fort Pierce, Florida 34982
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
The Issue The issue in this case is whether the crime of which Petitioner was convicted in the District of Columbia, namely simple assault under that jurisdiction's law, directly relates to the activities of a real estate sales associate, thereby warranting Respondent's intended decision to deny Petitioner's application for licensure as a sales associate.
Findings Of Fact Respondent Florida Real Estate Commission ("FREC") is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. On September 11, 2018, Petitioner Milain David Fayulu ("Fayulu") applied for licensure as a real estate sales associate. In his application, Fayulu truthfully answered the question asking whether he had ever been convicted of a crime. Fayulu disclosed that he had been convicted of simple assault in the District of Columbia as the result of "[a]n altercation with a fellow student at American University in Washington DC," which had occurred on April 7, 2014. He further reported that he had completed all terms of sentence, which included one year of probation and 100 hours of community service. Fayulu did not mention that he also had been sentenced to 180 days of incarceration, the execution of which had been suspended, but FREC has not faulted him for this. The Judgment of conviction entered on January 15, 2016, by the Superior Court of the District of Columbia in United States v. Fayulu, Case No. 2014-CF2-006367, confirms that Fayulu pleaded guilty to one count of simple assault and received the sentence just described. As evidence of what happened on April 7, 2014, FREC relies almost entirely on the Affidavit in Support of an Arrest Warrant (the "Arrest Report"), which was subscribed and sworn to on April 10, 2014, by a District of Columbia law enforcement officer whose name is illegible (the "detective"). According to the Arrest Report, the detective interviewed three people in preparing his description of the incident: the arresting officer, the complainant, and a witness to the offense. To the extent relevant,1/ however, the entire narrative of the Arrest Report (the "Probable Cause Allegations"), with one possible, but largely immaterial exception,2/ is hearsay that is neither admissible pursuant to a recognized exception to the hearsay rule, nor corroborative of any competent, persuasive, nonhearsay evidence in the record that needs to be supplemented or explained.3/ Thus, the Arrest Report is not competent substantial evidence of the truth of the matters concerning the offense asserted therein.4/ The Arrest Report is not hearsay evidence of one fact, however; namely, that the prosecutor, and the judicial officer who approved the issuance of an arrest warrant, concluded (along with the detective) that the Probable Cause Allegations justified a charge of aggravated assault while armed ("AAWA") under D.C. Code section 22-404.01——a far more serious offense5/ than the simple assault of which Fayulu ultimately would be convicted.6/ This means that the government did not need to prove all of the Probable Cause Allegations——and, for all we know based on the instant record, could not have proved them beyond a reasonable doubt——to obtain Fayulu's conviction. The actual charging document containing the government's formal allegations against Fayulu is not in evidence. Nor is the transcript of the plea colloquy. As a result, the undersigned cannot make any findings regarding the specific factual admissions Fayulu made when he pleaded guilty to the simple assault charge. To be clear, Fayulu's guilty plea is not an admission to the truth of the Probable Cause Allegations in their entirety, for, as just explained, the government did not have the burden of proving those allegations in toto to support a simple assault conviction. If this sounds like hair-splitting, it is only because the undersigned has not recited (and will not repeat) the unproved Probable Cause Allegations. To be sure, it is extremely tempting to evaluate Fayulu's testimony against the backdrop of the alarming Probable Cause Allegations and to conclude that he is being cagey or unforthcoming about what really happened during the incident that led to his arrest and conviction. This is because the Arrest Report enjoys unearned credibility, probably owing to a general respect for law enforcement, whereas Fayulu's testimony, which depicts the incident in a much less malevolent light (as perpetrators do, we imagine), is readily, albeit unfairly, presumed to be self- serving. FREC's intended decision to deny Fayulu's application is, in fact, based on the premise that, as a matter of historical fact, Fayulu behaved as described in the Arrest Report, even though there is no competent substantial evidence in the record proving the Probable Cause Allegations. Fayulu tried to make this legal point in the proceedings before FREC, but——not being a lawyer and representing himself——he did so somewhat clumsily and managed mostly to come off sounding like he had something to hide. At hearing, after some prodding, Fayulu testified that on the evening of April 7, 2014, he and his two roommates were in a car heading home from the library, where they had been studying, when the alleged victim (the complainant) approached their vehicle, which was stopped at the exit from the library's parking lot as the driver waited for a break in traffic to pull out onto the street. The complainant spit on the driver through an open window. The driver parked the car and the three men got out. They began yelling at the complainant. According to Fayulu, the complainant threw the first punch, so to speak, which triggered a brawl that lasted for two or three minutes. Fayulu was directly involved in the fight, which was violent and caused the combatants to fall to the ground. Fayulu and his friends then decided to stop the altercation. The complainant, who afterwards remained standing on the side of the street, "seemed perfectly fine" and was "in a physically decent condition" in Fayulu's opinion, having been neither bloodied nor knocked unconscious during the affray. Fayulu and his two companions walked back to their car and left. Fayulu's account of the incident provides a sufficient basis in fact to support a conviction for simple assault under D.C. law, which is analogous to misdemeanor battery under section 784.04, Florida Statutes. Fayulu's testimony about what happened is not inherently unbelievable, moreover, and there is no competent substantial evidence in the record refuting his version of the event. While it is likely that Fayulu has tried to put himself in the best possible light consistent with the truth, and despite some obvious testimonial ducking and weaving, the undersigned cannot find that he intentionally lied. At any rate, if it weren't for Fayulu's evidence about the facts and circumstances comprising the underlying offense (as opposed to the fact of his conviction, which is undisputed), there would be none at all.
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 approving Fayulu's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2019.
The Issue The issues to be determined are whether Respondent violated Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), and 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2-14.009, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate, having been issued license number SL 706026. During the time relevant to this case, Respondent was a sales associate affiliated with Jacksonville Home Finders, Inc., a brokerage company located in Jacksonville, Florida. Katrin Rabren was the broker/owner of Jacksonville Home Finders, Inc. (Homefinders). In approximately 2006, she hired Respondent as a sales associate, and Respondent's license was listed as affiliated with Homefinders in September 2006. In early April 2007, Ms. Rabren received a call from Alvin Reynolds, the owner of some property Homefinders was managing at 3501 Kernan Boulevard, Number 234, in Jacksonville. Mr. Reynolds was calling to ask for his funds from the rental of the property. The property was apparently rented and funds received from the tenant for a security deposit and first month's rent on or about March 12, 2007. However, those funds, totaling $1,444.99, were not placed in the broker's trust account. Ms. Rabren confronted Respondent about the funds and was told that Respondent spent the money on personal bills. Respondent told Ms. Rabren that she would replace the money. On April 5, 2007, Respondent gave Ms. Rabren a check made out to Jacksonville Homefinders for $1,489.99. The check was from an account for Winter Property Maintenance, Respondent's husband's company. Ms. Rabren's husband deposited the check in Homefinder's escrow account. On April 6, 2007, the check was returned for insufficient funds. Ms. Rabren paid the property owner out of her personal funds. Respondent has not replaced the funds or delivered funds to the employer/broker for deposit into the escrow account.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding that Respondent has violated the provisions of Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2- 14.009, as alleged in the Administrative Complaint, and revoking Respondent's license as a real estate sales associate. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2010.
Recommendation It is recommended that the Administrative Complaint as filed against James E. Annen, for purposes of revocation or suspension of his real estate brokers license no. 0001875 be dismissed. DONE and ENTERED this 22nd day of December, 1976, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 J. C. Adderly, Esquire Adderly, Aloia & Dudley Post Office Box 535 Cape Coral, Florida 33904
