The Issue Whether Respondent is guilty of obtaining a license by means of fraud, misrepresentation or concealment, in violation of Section 475.25(1)(m), Florida Statutes (1997).
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida. Respondent is and was at all times material to this proceeding a licensed Florida real estate salesperson. She was issued Licensed No. 0627131 in accordance with Chapter 475, Florida Statutes. Her license is currently active. On or about May 9, 1995, Respondent submitted an application for licensure as a real estate salesperson. Question number 9 on the application read as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of any other state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach details including dates and outcome, including sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records, Failure to answer this question accurately could cause denial of licensure. If you do not understand the question, consult with an attorney or the Division of Real Estate. Respondent marked the "NO" box beside question number 9. Respondent then signed the "Affidavit of Applicant" which read above her signature: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and recollection permit, without any evasions or mental reservations whatsoever, that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. The purpose of Question 9 is to assist the Division of Real Estate in assessing the applicant's propensity for honesty, trustworthiness, and good morals. Petitioner relied on the information and answers contained in Respondent's application in deciding to issue her a real estate salesperson's license. On July 10, 1995, Respondent passed the real estate salesperson examination and was issued License No. 0627131. From July 10, 1995, through the present, Respondent was an active salesperson in association with various brokers in the Central Florida area. Respondent is presently an active salesperson in association with Summer Bay Partnership, an owner/developer trading as Summer Bay Resort, located at 17805 U.S. Highway 192, Clermont, Florida 34711. On May 21, 1993, in Kissimmee, Osceola County, Florida, Respondent pled guilty to and was adjudicated guilty of the offense of driving while under the influence (DUI) of alcoholic beverage to the extent that her normal faculties were impaired, Osceola County Case No. 93-006486. Respondent was sentenced, inter alia, to a term of one (1) year supervised probation, a suspension of driving privileges for six (6) months, DUI counter-attack school, fines and court costs. Petitioner's investigation following the filing of the application yielded that Respondent had either misrepresented or erroneously answered question number 9 and, therefore, had gained her Real Estate License by fraud, misrepresentation or concealment. Respondent testified that she checked "NO" to question number 9 stating that she had never been convicted of a crime as she was advised by her attorney in 1993 that DUI was a traffic violation, not a criminal offense. Further Respondent testified that when she thought of a crime, she thought of murder, rape and robbery, not a traffic violation. Respondent testified that she did not intentionally lie, misrepresent or conceal her past conviction for DUI in order to gain a Real Estate License. Respondent submitted finger print exemplars with her application, aware that there would be a background check done. Respondent stated that she only became aware of the fact that a DUI was a crime when she received notification from the Respondent.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that Respondent's license should not be revoked but that a lesser discipline be imposed within the range set forth in Rule 61J2-24.001(3), Florida Administrative Code. DONE AND ENTERED this 4th day of January, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 4th day of January, 1999. COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32801-1772 William J. Sheaffer, Esquire 609 East Central Boulevard Orlando, Florida 32801 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline proceeding in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Chapter 489, Florida Statutes. Specifically, the Respondent has been charged in a three-count Administrative Complaint with violations of paragraphs (e), (h) and (m) of Section 489.129(1), Florida Statutes.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed Certified General Contractor, having been issued license number CG C046109, by the State of Florida. At all times material hereto, the Respondent was the qualifying agent for Florida Hi-Tech Construction, Inc. On November 2, 1990, the Respondent, doing business as Florida Hi-Tech Construction, Inc., contracted with New Life Presbyterian Church for the construction of a church at 7355 Coral Way, Miami, Florida 33155, for the price of Two Hundred and Ninety Four Thousand dollars ($294,000.00). New Life Presbyterian Church paid Florida Hi-Tech Construction, Inc., One Hundred and Four Thousand dollars ($104,000.00) toward the contract price. The Respondent constructed a foundation and two exterior concrete block walls with tie beams, and then abandoned the project without just cause or notice to the owner during or near March of 1991. The work performed by the Respondent amounted to approximately ten or fifteen percent of the total work to be performed under the contract. The amount of money the Respondent received from the New Life Presbyterian Church amounted to approximately thirty-five percent of the full price to be paid under the contract. On May 17, 1991, a lien in the amount of One Thousand Eighty Nine dollars and Seven cents ($1,089.07) was filed against 7355 Coral Way, Miami, Florida 33155, the property known as New Life Presbyterian Church, for building materials furnished by Nachon Enterprises, Inc., in accordance with a contract between Florida Hi-Tech Construction, Inc., and Nachon Enterprises, Inc. The Respondent failed to remove said lien and the New Life Presbyterian Church paid Nachon Enterprises, Inc., to satisfy said lien. On April 19, 1991, a lien in the amount of Ten Thousand One Hundred Eighty Four dollars and Fourteen cents ($10,184.14) was filed by Southeastern Municipal Supply, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering. On April 19, 1991, a lien in the amount of One Thousand Eight Hundred Sixty One dollars and Thirty Six cents ($1,861.36) was filed by PreCon Products, a Division of Clayton Group, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials furnished in accordance with a contract with Downrite Engineering. The Respondent failed to remove the liens filed by Southeastern Municipal Supply and PreCon Products, a Division of Clayton Group, Inc., and New Life Presbyterian Church paid both liens. Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church by Southeastern Municipal Supply and PreCon Products, both Divisions of Clayton Group, Inc., were furnished in accordance with Respondent's instructions. On May 17, 1991, a lien in the amount of Four Thousand Seven Hundred Ninety Four dollars and Ninety One cents ($4,794.91) was filed by Standard Concrete Corporation against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Standard Concrete Corporation. On February 1, 1991, a lien in the amount of Four Thousand Nine Hundred Ninety Nine dollars and Eighty Four cents ($4,999.84) was filed by Central Concrete Supermix, Inc., against 7355 Coral Way, Miami, Florida 33155, for concrete furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Central Concrete Supermix, Inc. The Respondent failed to remove the lien filed by Central Concrete Supermix, Inc., and the New Life Presbyterian Church paid Four Thousand dollars ($4,000.00) in satisfaction of the lien. On February 22, 1991, a lien in the amount of Two Thousand One Hundred Twelve dollars ($2,112.00) was filed by Del Amo Plumbing, Inc., against 7355 Coral Way, Miami, Florida 33155, for plumbing materials and labor furnished in accordance with a contract between Florida Hi-Tech Construction, Inc., and Del Amo Plumbing, Inc. The Respondent failed to remove the lien filed by Del Amo Plumbing, Inc. On April 10, 1991, a lien in the amount of Two Thousand Two Hundred and Fourteen dollars and Ninety Three cents ($2,214.93) was filed by Austin Tupler Trucking, Inc., against 7355 Coral Way, Miami, Florida 33155, for trucking and related services furnished in accordance with a contract between Downrite Engineering and Florida Hi-Tech Construction, Inc. The Respondent failed to remove the lien filed by Austin Tupler Trucking, Inc., and the New Life Presbyterian Church paid to satisfy the lien. Downrite Engineering was a subcontractor of Florida Hi-Tech Construction, Inc., in the construction of the New Life Presbyterian Church, and the materials furnished to the New Life Presbyterian Church, by Austin Tupler Trucking, Inc., were furnished in accordance with the Respondent's instructions. New Life Presbyterian Church overpaid the Respondent by approximately Sixty Five Thousand Seven Hundred and Five dollars ($65,705.00). The New Life Presbyterian Church suffered financial harm as a result of the Respondent's activities. The Respondent obtained money draws from the New Life Presbyterian Church in a manner that did not conform to the contract requirements. The Respondent hired Joe Al Electric, Inc., to perform electrical work on the New Life Presbyterian Church. Joe Al Electric, Inc., was not a licensed entity pursuant to Chapter 489, Florida Statutes. The Respondent failed to ensure that Joe Al Electric, Inc., was an entity licensed to practice electrical contracting in the State of Florida. The Respondent assisted Joe Al Electric, Inc., in the uncertified and unregistered practice of contracting. The Respondent was previously found guilty of violations of paragraphs (k), (h), and (m) of Section 489.129(1), Florida Statutes, in a Final Order issued by the Construction Industry Licensing Board on May 13, 1994, in DBPR Case No. 92-14332. As of the date on which it submitted its proposed recommended order, the Petitioner had incurred costs associated with the investigation and prosecution of this case of at least Eight Thousand Three Hundred Six dollars and Sixty Two cents ($8,306.62).
Recommendation On the basis of all the foregoing, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of the violations charged in all three counts of the Administrative Complaint; and Imposing the following penalties for the violations alleged in Counts I and II of the Administrative Complaint: (a) administrative fines totaling Ten Thousand dollars ($10,000.00) (a $5,000.00 fine for each of the two counts); and (b) revocation of the Respondent's license. DONE AND ENTERED this 26th day of April 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April 1995 COPIES FURNISHED: Charles F. Tunnicliff, Esquire Senior Attorney Department of Business and Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Mr. Gonzalo Ardavin 6120 East Territorial Avenue Tucson, Arizona 85718 Richard Hickok, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467 Linda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent properly denied Petitioner's application for licensure by endorsement to practice as a registered nurse in the state of Florida.
Findings Of Fact In June of 1980, Petitioner was vacationing in Escambia County, Florida. While he was there, he was arrested for Driving Under the Influence of Liquor (DUI). After his arrest, Petitioner was taken to a police station where he waived his right to an attorney and submitted to a Breathalyzer test. Petitioner was held at the police station until a family member picked him up several hours later. Petitioner posted a $100 bond to secure his release from police custody. Petitioner pled guilty and was convicted of DUI in July of 1980. Petitioner was ordered to pay a fine in the amount of $167.50. His driver's license was suspended for 90 days. He was nineteen years old at the time. Petitioner was in the United States Navy for 16 years, beginning in November of 1980. Initially, Petitioner received training as a urology technician and an operating room technician. Later he participated in the Medical Enlisted Commissioning Program, which allowed him to complete his bachelor's degree in nursing. Petitioner served as an ensign the last five years of his naval career, during which he received several security clearances. Petitioner routinely disclosed the existence of his previous DUI when questioned by the Navy. Petitioner was medically retired from the armed forces in September of 1996. He filed an application for licensure by endorsement as a nurse with Respondent in August of 1996. At that time, Petitioner was already licensed as a registered nurse in the state of Rhode Island. Since October of 1996, Petitioner has worked as the Director for Risk and Quality Management at Gulf South Health Plans in Louisiana. Petitioner is also licensed to practice nursing in the state of Louisiana. Question 6A of the Florida application for nursing licensure states as follows: 6A. ARREST HISTORY Have you ever been convicted or have you entered a no contest or guilty plea -- regardless of adjudication -- for any offense other than a minor traffic violation? Petitioner answered this question on his application by checking the block marked "NO." Petitioner filed his application with Respondent on August 2, 1996, without disclosing his arrest and conviction for DUI. Respondent's routine check with the Florida Department of Law Enforcement revealed Petitioner's 1980 arrest and conviction for Driving Under the Influence. Respondent subsequently requested additional information from Petitioner relating to his DUI. Respondent furnished Petitioner with all requested information. Petitioner did not knowingly or willfully fail to disclose his arrest and conviction for DUI. At the time he filed his application, Petitioner believed his 1980 DUI conviction constituted a "minor traffic offense." He did not understand the question on the licensure application to require the reporting of a DUI conviction. Question 6A on Petitioner's application does not state whether an applicant should disclose all misdemeanors as well as felonies. The question is confusing and misleading. From February 1992 through June 1997, Respondent denied 392 applicants for nursing licensure because they had a criminal conviction or failed to disclose one or more criminal convictions. Respondent was able to locate the files of 287 of those applicants. Of the 287 applicants, 183 failed to disclose crimes other than DUI or criminal traffic charges. Ninety-four applicants failed to disclose DUI or criminal traffic violations. After Petitioner filed his application, Respondent approved a revision to the language of Question 6A. The revised language for the question reads as follows: Have you ever been found guilty of, or pled guilty or no contest to, any charge other than a minor traffic offense? You must include all misdemeanors and felonies even if adjudication was withheld. Respondent decided to make this change due to the high percentage of applicants who failed to disclose convictions for DUI. Respondent wanted to make the question easier to understand. Respondent has never denied licensure to an applicant solely as a result of an applicant's previous DUI conviction.
The Issue Whether the Education Practices Commission should revoke or suspend Respondent's teaching certificate, or impose any other penalty provided by law, for the reasons cited in the Administrative Complaint filed July 12, 1994.
Findings Of Fact Respondent holds Florida Educator's Certificate No. 182469, covering the areas of business education and vocational education. It is valid through June 30, 1997. Respondent filed an application for the renewal of her certificate. Respondent was formerly employed by the Brevard County School District. She retired from her employment with the school district in March 1994. In the case of United States of America v. Marguerite Y. Smith, Case Number 93-185-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: Marguerite Y. Smith knowingly and intentionally executed and attempted to execute the scheme and artifice to defraud and to obtain money and funds by means of false pretenses and representations, in that Marguerite Y. Smith, forged the signature of Jerry Bellomy on Check Nos. 001081 and 001071, presented those checks to Southeast Bank, N.A. for payment, and then used the proceeds of those checks for her own purposes. All in violation of Title 18, United States Code, Section 1344. In the case of United States of America v. Marguerite Y. Smith, Case No. 93-198-CR-Orl-18, the Respondent was charged by the Federal Grand Jury with the following: On or about September 13, 1993, in Brevard County, Florida, in the Middle District of Florida, Marguerite A. Smith, the defendant herein, in a matter within the jurisdiction of the National Aeronautics and Space Administration of the United States, knowingly and willfully made a false, fictitious and fraudulent material statement and representation, in that the defendant certified that she had not, within a three year period preceding September 13, 1993, been convicted of commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public contract or subcontract, or with commission of theft, or with making false statements, whereas, as Marguerite A. Smith then and there well knew, on September 20, 1991, in the case of United States v. Marguerite A. Smith, Case No. 910166-CR-Orl- 19, Marguerite A. Smith was convicted of a violation of Title 18, United States Code, Section 665(A) theft from employment and training funds, arising from the submission of a false claim to obtain funds administered by a federal agency pursuant to the Job Training Partnership Act. All in violation of Title 18, United States Code, Section 1001. Respondent plead not guilty to the charges and following a trial by jury was found guilty of both charges. On April 20, 1994, Respondent was adjudicated guilty of Bank Fraud and making a False Statement to an Agency of the United States. She was sentenced to be imprisoned for a term of fifteen months, followed by supervised release for a term of three years during which Respondent must pay $22,953.28 in restitution. Respondent was arrested on the above charges at Rockledge High School, where she was employed, during a school day on November 15, 1993. Two FBI agents went to the principal's office and told the principal that they came there to arrest Respondent. The principal went to Respondent's classroom and asked her to come with him to his office, whereupon she was arrested and taken to detention by the FBI agents. The principal was contacted by the local radio station and one of the major news networks sent a television crew to the school for an on-campus interview. There was television and radio coverage of the fact that Respondent was arrested. There was widespread knowledge of her arrest among the students at the school, their parents and the community at large. Respondent's arrest and conviction was the subject of newspaper articles in Florida Today on January 5, 1994, and The Orlando Sentinel on November 16, 1993. Respondent is not eligible for rehire by the Brevard County School District because she had been found guilty of a felony and that Respondent's effectiveness as a teacher has been damaged. In a prior case, an Administrative Complaint was filed against Respondent on May 12, 1993, alleging that Respondent submitted a fraudulent claim to receive federal funds and that she pled guilty to the charge of Obtaining Federal Funds by Fraud, Betty Castor v. Marguerite Smith, Case No. 93-067-RT, EPC Index No. 93-197-FOI. As a result of that administrative proceeding, Respondent was disciplined by the Education Practices Commission (EPC) in a Final Order issued on December 24, 1993. Respondent was placed on four years probation and was issued a letter of reprimand by the EPC.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding Marguerite Smith guilty of violating the provisions of Sections 231.28(1)(c)(e)(f) and (2), Florida Statutes. It is further RECOMMENDED that a Final Order be issued revoking Respondent's teaching certificate for a period of seven years. DONE AND ENTERED this 26th day of December, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1997. COPIES FURNISHED: Barbara J. Staros, Esquire Post Office Box 3444 Tallahassee, Florida 32315 Lorene C. Powell, Esquire Chief Trial Counsel FEA/United 118 North Monroe Street Tallahassee, Florida 32399-1700 Kathleen Richards, Executive Director Professional Practices Services 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Program Director Professional Practices Services 351 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Petitioner's application for licensure as a yacht and ship salesman should be approved or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes, is the state agency responsible for licensing and regulating yacht and ship brokers and salespersons in Florida. Section 326.003, Florida Statutes (1997). On July 28, 1998, the Division received an application for a yacht and ship salesperson's license from Richard Badolato. Question 13 on the application solicits information of the applicant's criminal history as follows: Have you ever been convicted of a crime, either pled or been found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld? NOTE: This question applies to any violation of the laws of any municipality, county, state, or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. Your answer to this question will be checked against local and state records. Failure to answer this question accurately could cause denial of licensure. After Question 15 of the application, the following statement appears in bold type: "If your answer to question 13, 14, or 15 is Yes, attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held or are pending." Mr. Badolato answered Question 13 in the affirmative, and he signed the application, thereby certifying that "the foregoing information is true and correct to the best of my knowledge and belief." Mr. Badolato did not provide the statement of particulars which must be submitted by those answering Question 13 in the affirmative. In a letter dated July 28, 1998, the Division notified Mr. Badolato that his application was incomplete and that he should, among other things, provide a complete written explanation of his criminal history. In response to this letter, Mr. Badolato provided a signed statement in which he stated: "I was arrested and charged with possession of marj. in 1981." Mr. Badolato also provided a telephone number on the statement, indicating that he could be contacted at that number if the Division had any questions. Pursuant to the provisions of Section 326.004(15), the Division issued a 90-day temporary license to Mr. Badolato, pending completion of the criminal history analysis that is done on all applicants by the Florida Department of Law Enforcement. The Division subsequently received a report from the Federal Bureau of Investigation which revealed that Mr. Badolato had three drug-related felony convictions, as well as an arrest on June 22, 1977, which resulted in a charge of possession of marijuana with intent to distribute. On August 24, 1981, Mr. Badolato was convicted in federal district court in Brunswick, Georgia, of conspiracy to smuggle marijuana; he was sentenced to ten years in prison and ordered to pay a $30,000 fine. On October 23, 1981, Mr. Badolato was convicted in federal district court in Miami, Florida, of conspiracy to distribute cocaine; he was sentenced to thirty months in prison, to run consecutively with the ten-year sentence in the Georgia case. On January 31, 1989, Mr. Badolato was convicted in federal district court in Maryland of conspiracy to distribute marijuana; he was sentenced to thirty-six months in prison, to run concurrently with any sentence imposed for a violation of parole. Mr. Badolato was released from prison in 1991 and successfully completed parole in December 1996 with respect to the 1989 conviction. In late 1997, Mr. Badolato received a letter advising him that he might be eligible for clemency. An attorney acting on behalf of Mr. Badolato filed an application for clemency with the Florida Parole Commission. Although Mr. Badolato has never seen this application, he assumes that the file developed during review of the application contains complete information regarding his criminal history.2 When the Division received the Federal Bureau of Investigation report, Peter Butler, head of the Division's general enforcement section, contacted Mr. Badolato by telephone, read to him the statement in the application quoted in paragraph 4 above, and asked him if he wanted to amend his application. Because he could not remember the exact dates of his three felony convictions, Mr. Badolato responded by referring Mr. Butler to the Clemency Board if Mr. Butler wanted to obtain further information about Mr. Badolato's criminal history. Mr. Badolato acknowledged in his testimony that he should have been more thorough in completing his application for licensure, that he was lazy and stupid for not being more forthcoming in the application, and that he did not intend to mislead the Division. He believed that, by answering "Yes" to Question 13 and admitting that he was arrested and charged with possession of marijuana in 1981, he had provided enough information to alert the Division that he had a criminal history. He also assumed that it would be very easy for the Division to obtain complete information about his background merely by running a computer check and by reviewing the information in his clemency application file. From 1991, when he was released from prison, until December 1998, Mr. Badolato was involved in the restaurant business in a managerial capacity, and, as part of his duties, he handled large sums of money. No money in his care was ever found missing, and no adverse employment actions were taken against him during this time. In addition, during the time he was on parole, Mr. Badolato periodically submitted to random drug-testing and never failed a test. The evidence presented by Mr. Badolato is not sufficient to establish that he is of good moral character. He admitted in his answer to Question 13 on the application that he had been convicted of a felony, yet he included in the statement which he filed as part of the application a vague, incomplete, misleading, and inaccurate reference to an arrest and charge of possession of marijuana in 1981.3 Furthermore, Mr. Badolato certified by his signature on the application form that the information he provided was "true and correct to the best of [his] knowledge and belief," when he was certainly fully aware that he had three separate felony convictions. Mr. Badolato presented evidence of his good employment history subsequent to his release from prison in 1991, his successful termination of probation, and his faithful payments on the $30,000 fine imposed in 1981, all of which tend to show rehabilitation and good moral character. However, Mr. Badolato's failure to include in his application complete and accurate information regarding his criminal history tends to show lack of rehabilitation and lack of good moral character. On balance, Mr. Badolato's failure to disclose in his application his complete criminal history outweighs the evidence he presented to show rehabilitation and good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Land Sales, Condominiums, and Mobile Homes, enter a final order denying Richard Badolato's application for licensure as a yacht and ship salesperson. DONE AND ENTERED this 16th day of August, 1999, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 16th day of August, 1999.
Findings Of Fact On January 25, 1983, the Respondent, George S. Williams, submitted to the Division of Licensing, office of the Secretary of State, an application form for a Class "E" Repossessor's license in the State of Florida and enclosed with it the $25 filing fee. In Section 7 of the form, dealing with the applicant's employment history for the five years prior to the application, Respondent listed, inter alia, employment with Adams' Investigations, Inc., in Orlando, Florida, during the periods November 1979 to October 1980, and October 1982 to May 3, 1983. In the sworn Affidavit of Experience attached to the application, Respondent indicated that during the first period of employment with Adams, he handled actual repossessions in the field. During the course of his case investigation leading up to the issuance of Respondent's license, Willie Rister, an investigator for the Division of Licensing, interviewed the Respondent. During this interview, Respondent told Mr. Rister that during both periods of employment with Adams Investigations, Inc., listed in the application, he was performing repossessions for Adams as a salaried employee at $400 per week. The "EE" repossessor intern license did not exist under Florida Law until July 1, 1980, when the Florida Legislature revised Chapter 493, Florida Statutes. Notice of the change in the law requiring the need for "EE" licenses was not sent out to current "A" license holders until March 30, 1981. In fact, forms did not exist for applying for the Class "EE" license until well after the effective date of the new legislation. Under the preexisting legislation, holders of Class "A" or Class "C" licenses could conduct repossessions. The new law provided that holders of Class "A" licenses could apply for and receive a new Class "E" license by submitting a complete application, along with an application fee, by May 14, 1981. This savings clause applied to holders of Class "A" licenses, But not to those who had no license at all. Under the new law, repossession work required either a Class "E" license, to work alone, or a Class "EE" license, to work for a licensed agency with an "E" license. Here, Respondent had not been previously licensed and held no license at all, "A," "C," "E," or "EE," until his "E" license was issued on May 21, 1983, and acted as are possessor, unlicensed, until that date.
Recommendation That Respondent pay an administrative fine of $50.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Administrative Complaint filed by Petitioner on November 20, 1980, be dismissed by final agency order. DONE AND ORDERED this 17th day of February, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of February, 1981. COPIES FURNISHED: William D. Moore, Esquire Ella Jane P. Davis, Esquire 700 Barnett Bank Building Department of Transportation Tallahassee, Florida 32301 Haydon Burns Building, MS 58 Tallahassee, Florida 32301 J. Lawrence Johnston, Esquire Post Office Box 1170 Tallahassee, Florida 32302
The Issue The issue in this case is whether Petitioner should deny Respondent's application for a yacht salesperson's license on the ground that Respondent failed to furnish proof of his good moral character in violation of Section 326.004(6)(a), Florida Statutes (1999). (All chapter and section references are to Florida Statutes (1999) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating yacht and ship salespeople and brokers and for administering and enforcing Chapter 326. Respondent is a licensee applying for renewal of a yacht salesperson's license. Respondent applied for and the Division approved Respondent's initial yacht salesperson's license in 1995. Pursuant to Section 326.004(1), yacht salesperson's licenses are valid for a two-year period. In addition, Respondent formerly held a state contractor's license and a real estate broker's license from Petitioner's agency. The Construction Industry Licensing Board ("CILB") is a division of Petitioner. The CILB served Respondent with an administrative complaint regarding his contractor's license in March 1997. In 1998, the Florida Real Estate Commission ("FREC") revoked Petitioner's real estate license. The Division did not become aware of the administrative proceedings against Respondent's construction and real estate licenses until August 1998. By final order issued March 19, 1998, the CILB fined Respondent and suspended his state contractor's license for five years. The CILB found that Respondent violated Section 489.129(1)(h)(2), (k) and (m). Respondent committed mismanagement that caused financial harm to a customer by accepting deposit money but failing to perform on the contract; abandoned the construction project under contract by failing to begin construction for a period of five months; and engaged in deceitful conduct in the practice of contracting. The CILB also found that Respondent violated Section 489.129(1)(n) by committing incompetence and misconduct in the practice of contracting. The victims in Respondent's CILB case received $22,845.00 from the Construction Industries Recovery Fund as compensation for the harm they suffered due to Respondent's violation of Section 489.129(1)(h)(2). Respondent's obligation to pay restitution to the victims was discharged in bankruptcy. Respondent is still paying the fines and interest ordered in the CILB license suspension case involving his construction license. After the CILB suspended Respondent's contractor's license, FREC, another division of Petitioner, issued an administrative complaint seeking to revoke Respondent's real estate broker's license on the ground that the CILB had suspended Respondent's construction license. Respondent voluntarily surrendered his real estate broker's license for revocation. By final order dated August 19, 1998, FREC revoked Respondent's real estate broker's license. Respondent timely applied for, and the Division approved, the renewal of Respondent's yacht salesperson's license in August 1997. On this renewal application, Respondent answered "N" to question number four which asked whether there were any cases pending against the applicant. In August 1999, Respondent timely applied for renewal of his yacht salesperson's license. Petitioner denied the application on the sole ground that Respondent failed to show that he is of good moral character in violation of Section 326.004(6)(a). Petitioner determined that Respondent failed to show good moral character based on the CILB suspension of Respondent's contractor's license, FREC's revocation of Respondent's real estate license, and Petitioner's conclusion that Respondent had answered question four on his 1997 renewal application untruthfully in violation of Section 326.006(2)(f)1. Petitioner relied solely on a review of the documents in its file and did not conduct an independent investigation or interview Respondent. Respondent did not falsely answer "no" to question four on his 1997 renewal application. Question four asked, in relevant part: Has any judgment or decree of court been entered against you or is there now pending any case, in this or any other state, in which you were charged with any fraudulent or dishonest dealing. Question four limited its scope to judgments, decrees, and cases pending in any court in this or another state and did not ask for disclosure of administrative proceedings. Administrative agencies, including DOAH, are not courts. The administrative complaint filed against Respondent in March 1997 was not a case pending in a court in this or another state. As Petitioner noted on its Investigative Report, ". . . a final order of an agency is not a judgment or decree of court." Respondent construed question four on his 1997 renewal application to be limited to courts. Respondent's interpretation was reasonable and valid. It was not intended to deceive Petitioner. In August 1998, an attorney for FREC informed Respondent that he should disclose administrative proceedings in addition to court cases. Respondent immediately informed Petitioner by telephone and letter of the pending administrative proceedings. In the renewal application filed in 1999, Respondent disclosed the suspension of his construction license, the revocation of his real estate license, and answered "yes" to question four on the application. In an effort toward full disclosure, Respondent answered "yes" to question three when Respondent should have answered "no." Question three asked Respondent if he had been convicted of a crime. The only finding from the suspension of Respondent's construction license by the CILB and the revocation of Respondent's real estate license by FREC that is at issue in this case is a finding by ALJ Daniel M. Kilbride that Respondent committed fraud and deceit by adding a provision for a commission at the end of a construction contract entered into on December 23, 1994. By final order entered on March 16, 1998, the CILB adopted the Recommended Order of Judge Kilbride. The judicial doctrine of equitable estoppel, or estoppel by judgment, bars the re-litigation of factual and legal issues common to both the CILB case and this case. Therefore, the finding that Respondent committed fraud and deceit in 1994 cannot be litigated in this case. The good moral character of Respondent was not at issue in the license suspension case decided by Judge Kilbride. Therefore, Respondent is entitled to present evidence of his good moral character in this case including evidence that explains and mitigates the circumstances of the 1994 transaction in an effort to show that Respondent does not now lack good moral character. The sales commission at issue in the 1994 transaction was to be paid out of Respondent's proceeds from the construction contract. It was not an additional expense to be paid by the buyers. It did not increase the construction price of the house. The commission was to be paid by Respondent for services provided by Castle Real Estate on behalf of Respondent. The buyers did not object to the insertion of the commission provision at the end of the contract. The buyers did not object to the commission being paid at closing. The construction lender released the funds for the commission as part of the construction draw Respondent received. The funds were not separately identified, and Respondent had no knowledge that the lender had released the funds as part of the construction draw. Respondent was an active builder in the local real estate market. He had constructed several "spec" homes. When the real estate market declined, Respondent incurred financial problems attributable to subcontractors and was unable to service the debt he owed on the "spec" homes. Respondent declared bankruptcy in 1996. The buyers in the 1994 transaction did not make any request for refund until after Respondent had declared bankruptcy. Respondent could not make preferential payments to creditors after he declared bankruptcy. More than five years have passed since the 1994 transaction. Even if Respondent lacked good moral character in 1994, he now possesses good moral character. Respondent is now in stable financial condition. Respondent has made all payments due under the license suspension order in a timely manner. Respondent is a licensed captain in the Coast Guard Auxiliary. He has served as a commodore of the local boating club and as a former public affairs officer in charge of public education for the local flotilla. Respondent has conducted himself with integrity in all of his yacht sales. Respondent enjoys an excellent reputation in the boating community for honesty and integrity. Respondent's knowledge about yachts is above average. Over a span of 15 years, Respondent has held licenses with the state as a mortgage broker, real estate salesman, and real estate broker. During that time, no complaints have ever been filed against Respondent for his activities under those licenses. The revocation of Respondent's real estate license was based on the suspension of Respondent's construction license by the CILB. The complaint filed against Respondent's construction license involved a single isolated transaction that occurred more than five years ago for which there were significant mitigating circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent has good moral character, within the meaning of Section 326.004(6)(a), and renewing Respondent's yacht salesperson's license. DONE AND ENTERED this 28th day of June, 2000, in Tallahassee, Leon County, Florida. 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 28th day of June, 2000. COPIES FURNISHED: Ross Fleetwood, Director Division of Florida Land Sales, Condominiums and Mobile Homes Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Scott K. Edmonds Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Thomas C. Houck, Esquire 312 South Harbor City Boulevard Melbourne, Florida 32901 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
