Findings Of Fact Santa Cruz Marketing, Inc., d/b/a SMI (hereinafter referred to as SMI), a Delaware corporation, is located at Suite 29, 1280 South Powerline Road, Pompano Beach, Florida 33069. Although SMI began operating as a business in Florida in December of 1988, it was not authorized to do business in Florida until December of 1991. At all times material hereto, Edward Winders has been the president/secretary, Jim Winders has been the vice president/treasurer, and Cecil Butler has been the general manager for SMI. Edward Winders and Jim Winders each own 50% of the stock of SMI. Cecil Butler has no ownership interest in SMI and is simply a salaried employee. Edward Winders and Jim Winders are responsible for the day-to-day operation of the business. Although Cecil Butler has some unidentified level of supervisory responsibility over some of the other employees, no evidence was offered that he in any way participates in management decisions regarding the operation of the business itself. SMI advertises by placing ads in newspapers throughout the United States. Its ad reads as follows: "Easy credit card, cash advance, $5000 credit line, no credit check! Call 1-800-347-0773." SMI's business operations consist of the following units: the origination department, the customer service department, the clerical section, and the shipping section. When a call is placed using the toll-free number, that telephone call is answered by an account representative in the origination department. A written script called a credit card presentation is utilized by the account representative. The account representatives do not deviate from that script. The account representative obtains basic information from the caller, gives a brief program description, and then causes to be sent a packet of information called the first mailer to the caller. The script utilized by the account representative, however, does not tell the account representative how to answer questions from the callers. No evidence was offered as to any procedures SMI may have in place for assuring the correctness of answers given to callers' questions. The credit card presentation script tells the caller that he or she has reached the "easy credit card division," advises the caller that "our credit card offers a $5,000 line of credit which includes cash advance availability, now our major credit cards are also available regardless of credit history!", advises the caller that there are no annual fees and that the lifetime membership is a "one time processing fee," advises the caller that he or she is participating in a "limited membership drive," and advises the caller that "all the information on our credit card will be in your package along with our customer service number." The first mailer greets the "prospective member," refers to SMI's credit card program, encloses a pre-approved application, sets forth the amount of SMI's "lifetime membership fee," encloses a "100% money-back guarantee certificate," encourages the recipient to return his or her application and membership fee within 10 days, and promises a $100 gift certificate usable on the charge balance. The lifetime membership fee is $75 if paid by money order or cashier's check and $85 if paid by personal check or C.O.D. No further information is given regarding the details of SMI's "credit card program." An enclosure in the first mailer is a one-page sheet entitled "Special Notice." It features a facsimile of a Visa card and a facsimile of a MasterCard card. The short text includes the following language: Mail today and receive all these privileges. *CASH ADVANCES *VISA CARD AVAILABLE *MASTERCARD AVAILABLE *$100.00 MERCHANDISE CERTIFICATE *ADD POSITIVE INFORMATION ON YOUR CREDIT REPORT HAPPY SHOPPING!!!! The enclosed return envelope is directed to Santa Cruz Marketing, Inc. The line underneath that states that the envelope is going to "SMI Card Distribution Center." If the recipient does not immediately comply, a second mailer is sent five days later. The enclosures are the same as in the first mailer. The "dear prospective member" letter is different and is "just a friendly reminder that we have not received your lifetime membership fee for your pre-approved $5,000 credit card." It encourages the recipient to "take advantage of this unique credit card offer!" and advises the recipient that if the recipient's deadline has already expired, then a call should be placed to SMI's customer service department at a non-toll-free number. After the recipient submits the pre-approved application and pays the membership fee, he or she then receives the membership package. That package begins with a letter greeting the "new card member" and contains the following introductory paragraph: Welcome to the wonderful world of home shopping with your SMI credit card. As a preferred card member, you are offered the opportunity to purchase merchandise from our fantastic color catalogues filled with a wide variety of items. Attached to the letter is an SMI credit card. That letter is the first advice given by SMI to its new "lifetime member" that he or she has paid $75 to join a home shopping club. The letter further advises the recipient that purchasing merchandise from SMI's catalogues will "enable you to establish that A+ credit rating you have always desired, but which may have been denied to you in the past." The letter further advises that SMI will submit monthly statements to the member and that the member can then pay 10% of the balance (with a minimum payment of $15) or the balance can be paid in full. The letter also advises that the new member will pay no interest charges on his or her purchases, "but please remember in order to help you establish your A+ credit rating, your payments must be made on time." The membership packet also contains two merchandise catalogues, an order form, and a price list. According to the price list and the terms of SMI's home shopping program, two prices are available to an SMI member. For each item, the member may pay a specified cash price and a specified shipping charge. Alternatively, the member can pay a credit price, which is higher than the cash price. If the member chooses to purchase the item on credit, the member will pay the higher price as follows: the member includes with his or her order form a specified portion of the credit price as a down payment on the item, with the balance of the credit price being charged to the member's charge account. The member paying the higher credit price will also pay the specified shipping charge. The promised $100 merchandise certificate is included in the membership packet. The certificate specifies that it can only be applied to the credit portion of an order after the down payment for that order is paid and that the certificate is void after 30 days from the date on which the membership was issued. The membership packet includes, for the first time, a description of SMI's cash advance program. The description of that cash advance program begins as follows: Once you have established a sufficient credit record with SMI, you will be extended 'cash advance privileges'. Simply prove your credit worthiness by shopping with your SMI credit card. All you have to do is, charge and pay for at least $500.00 of purchases of your unpaid balance. Once you have done that, you have qualified for a cash advance of $250.00. CASH ADVANCES OFFERS Immediate cash No interest charge Low monthly payments No processing fee Cash advances up to $2,500.00 According to the program, a cash advance of $2,500 would only be available if a member had charged and paid for $5,000 worth of purchases. The flyer also recites that the $100 merchandise certificate does not apply to cash advances. The next flyer contained in the membership packet is entitled "Qualify for a Visa or MasterCard." That flyer features facsimiles of both a MasterCard and a Visa card. The description of that portion of SMI's program begins as follows: Simply prove your credit worthiness by using your SMI Credit card. Just charge and pay for at least $750.00 of your unpaid balance. It's as simple as that! Once you have established a sufficient credit record, you will be sent a 'GOOD CREDIT REFERENCE LETTER' that you can use when applying for credit elsewhere. Plus, you will receive a 'MAJORITY APPROVED' application for a visa or mastercard with 'NO SECURITY DEPOSIT REQUIRED.' UNSECURED - NO SECURITY DEPOSIT REQUIRED (WE WILL DO IT FOR YOU) A $380.00 IMMEDIATE CREDIT LINE CASH ADVANCES COMPETITIVE INTEREST RATES ONE TIME PROCESSING CHARGE ONLY $35.00 ANNUAL CHARGE MAJORITY APPROVED WE ARE SO SURE THAT YOU WILL BE APPROVED THAT WE WILL SEND YOU A 'CASHIERS CHECK FOR $380.00' IF YOU DO NOT QUALIFY. The flyer points out that the $100 merchandise certificate does not apply to this part of the program. Another flyer contained in the membership packet explains a second way in which a member can qualify for a Visa or MasterCard as follows: New Collateralized Credit Card Program You Can Now Obtain a Major Bank Credit Card even though you may have previously been turned down! Under the 'collateralized credit card program' the member may obtain a secured major bank credit card which 'requires a security deposit equal to your initial credit limits.' If the member returns the coupon requesting details, SMI provides the name of another company, Access Credit Card Company, which company would charge an additional fee to provide the member with an application from New Era Bank. If the member followed that procedure, he or she would most likely obtain a Visa or MasterCard bank card from New Era Bank with a credit limit equal to the amount of money the member was willing to deposit in New Era Bank since that bank approves the majority of such applications. The membership packet contains three additional flyers. The first one relates to the SMI jewelry catalogue and explains that most gold items are sold by weight at current gold market prices, that prices fluctuate daily with the market, and that the member should check with SMI's ordering department by phone to receive current market prices. The second flyer gives the member information on joining the Select Coupon Club by paying a membership fee of $19.95 and receiving coupons for use at the supermarket. The third flyer describes a program whereby the member can pay $14.95 postage and handling and receive a Hotel Express Membership Directory and membership discount at participating hotels and resorts. A customer cannot obtain an SMI credit card prior to payment of the $75 membership fee. A customer cannot obtain credit for purchasing products from SMI's catalogues prior to payment of the membership fee. The SMI catalogues, received after payment of the fee, are not available to the general public. The customer is not informed prior to paying the membership fee, either during telephone conversations with SMI account representatives or from the first two mailers, that the credit card which the customer would receive can only be used to purchase goods from the two SMI catalogues. Although prospective members are advised in the first and second mailers that Visa and MasterCard cards are available, they are not told how they can obtain such cards until after they have paid their fee. Until after payment of the fee, they are not told that they can obtain a secured, i.e., a fully collateralized bank card by depositing in that bank monies equivalent to the credit limit then extended to them by the bank. Customers are not told prior to the payment of their membership fee, either by SMI account representatives during telephone conversations or in the first or second mailers, that the obtaining of a secured Visa or MasterCard card from New Era Bank will also require the payment of a processing fee and will carry a minimum $500 deposit requirement. Until after payment of the fee, they are not told that the alternative is to charge and pay for $750 worth of merchandise from SMI's two catalogues (not including the amount paid as a down payment on each item purchased) which amounts to $850 worth of charged merchandise if the customer uses the $100 gift certificate, in exchange for SMI then giving the customer a letter saying the customer is a good credit risk, which the customer can then present in applying for credit elsewhere. No evidence was offered that any other organization considers SMI's letter of recommendation meaningful. Prior to the payment of the fee, the prospective member is not advised that the cash advances which he or she would become entitled to receive are limited to an amount of one-half of the total balance the member has paid on the member's SMI charge account balance. No member has received a cash advance from SMI. No members have obtained a Visa or MasterCard card by charging and then paying for $750 worth of products from SMI's catalogues. Other than those documents previously described, no other documents, contracts, or statements are provided by SMI to prospective members or members. SMI purchases the products found in its catalogues at the distributorship cost, a lower price than members pay for the products when they purchase from SMI. As of July 1, 1991, SMI had 12,567 members. By the time of the final hearing in this cause, SMI had over fifteen thousand members. Eighty-four members had purchased items from the SMI catalogues. Petitioner received a consumer complaint regarding SMI in February of 1990. On June 28, 1990, Petitioner served on SMI a subpoena requesting that SMI provide to Petitioner the following information: Name of surety bonding company, location of surety bond and copy of surety bond; location and account number of Florida escrow account, proof of account; copy of information statement and consumer contract. SMI was unable to respond to the subpoena by providing that information because it did not have those items. SMI did respond to the subpoena, however, by providing copies of its advertising and the materials used in its mailers and membership packages. SMI further obtained a bond pursuant to Petitioner's direction to do so. In a series of letters from SMI's attorney to Petitioner, SMI submitted revised advertising and revised informational documents requesting Petitioner's approval of the revisions to bring SMI in compliance with the Department's requirements. The Department failed to respond to SMI's requests. Rather, on March 21, 1991, the Department served on Jim Winders and Cecil Butler an Administrative Complaint for Entry of a Cease and Desist Order and Imposing Penalties, alleging that Jim Winders and Cecil Butler were operating as a credit service organization without fully complying with Chapter 817, Florida Statutes. Jim Winders and Cecil Butler timely requested a formal hearing, and this cause was transferred to the Division of Administrative Hearings. While this administrative proceeding was pending, on July 1, 1991, the activities of loan brokers became regulated, and responsibility therefor was assigned to the Department. On August 12, 1991, the Department filed its Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties which included the allegations in the original Administrative Complaint, named SMI as a Respondent for the first time, added allegations that the three Respondents were operating as loan brokers, and further added allegations that the three Respondents were operating as retail sellers.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondents SMI and Jim Winders guilty of the allegations contained in the Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties as described in this Recommended Order; Finding Respondent Cecil Butler not guilty of the allegations contained within the Amended Complaint for Entry of a Cease and Desist Order and Imposing Penalties; Ordering Respondent SMI to cease and desist from violations of the statutes regulating the operation of credit service organizations, loan brokers, and retail sellers; Ordering Respondent Jim Winders to cease and desist from violations of the statutes regulating the operation of credit services organizations and loan brokers; Imposing an administrative fine against Respondent SMI in the sum of $90,000 to be paid by a date certain; and Imposing an administrative fine against Respondent Jim Winders in the sum of $6,000 to be paid by a date certain. DONE and ENTERED this 12th day of March, 1992, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1992. APPENDIX TO RECOMMENDED ORDER The Department's proposed findings of fact numbered 1-30, 34-46, 56, 57, 59- 66, 71-83, 85-89, and 91 have been adopted either verbatim or in substance in this Recommended Order. The Department's proposed findings of fact numbered 31, 32, 95, and 96 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. The Department's proposed findings of fact numbered 33 and 97 have been rejected as being contrary to the evidence in this cause. The Department's proposed findings of fact numbered 84, 90, 92-94, and 111 have been rejected as being irrelevant to the issues under consideration in this cause. The Department's proposed findings of fact numbered 47-55, 58, and 67-70 have been rejected as being unnecessary to the issues involved herein. The Department's proposed findings of fact numbered 98-106 have been rejected as being subordinate to the issues herein. The Department's proposed findings of fact numbered 107-110 have been rejected as not being supported by any competent evidence in this cause. Respondents' proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order. Respondents' proposed findings of fact numbered 4-11 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. Respondents' proposed findings of fact numbered 12-19 have been rejected as being subordinate to the issues herein. COPIES FURNISHED: Bridget L. Ryan, Esquire Richard Bisbee, Esquire Department of Banking and Finance Office of the Comptroller The Capitol, Suite 1302 Tallahassee, Florida 32399-0350 Jan Peter Weiss, Esquire Parkway Plaza-Suite 21 1280 South Powerline Road Pompano Beach, Florida 33069 Honorable Gerald Lewis Comptroller, State of Florida The Capitol, Plaza Level Tallahassee, Florida 32399-0350 William G. Reeves, General Counsel Department of Banking and Finance Room 1302, The Capitol Tallahassee, Florida 32399-0350
The Issue The issue is whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's April 4, 2011, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On or about December 7, 2010, Petitioner filed an application for licensure as a real estate sales associate with the Department of Business and Professional Regulation, Division of Real Estate ("Division"). On that application, he answered in the affirmative to question number one of the Background Questions. Question number one states, in pertinent part, "Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or are you currently under criminal investigation?" The application requires any applicant who answers "yes" to question number one to "provide the full details" of any criminal conviction, including the nature of the charges, outcomes, sentences and/or conditions imposed, and the dates, name, and location of the court and/or jurisdiction in which any proceedings were held. In his explanation for answering "yes" to question number one, Petitioner listed three offenses. All three were violations of former section 831.05, Florida Statutes (2003), "Vending goods or services with counterfeit trademarks or service marks."1/ The violations occurred in Miami-Dade County on February 2, 2002, January 16, 2003, and June 12, 2003. For the first offense, Petitioner stated that he received "suspended sentence/adjudication withheld/restitution ordered." Petitioner reported that the other two cases were combined into one prosecution resulting in a sentence limited to four months' time served, a probation of two years, and the provision of restitution. Petitioner described his offenses as follows: "As a merchant, I advertised and sold name-brand, imitation watches to customers willing to buy said merchandise. Consequently, I was monitored, arrested and charged for said activity." Information obtained by the Division from the Florida Comprehensive Case Information System ("CCIS") indicated that on March 28, 2002, the court withheld adjudication on Petitioner's first charge of vending goods with counterfeit labels. On September 17, 2003, Petitioner was adjudicated guilty of three counts of battery upon a law enforcement officer, one count of resisting an officer without violence, and one count of vending goods with counterfeit labels. On November 25, 2003, Petitioner was again adjudicated guilty of vending goods with counterfeit labels. By letter to Petitioner, dated December 21, 2010, the Division requested additional information from Petitioner regarding his answer to question number one. More specifically, the Department's criminal background check of Petitioner revealed other undisclosed offenses. The Division's letter stated as follows, in relevant part: . . . Please provide documentation for the following item: March 25, 1989/ Carrying a Concealed Weapon/ Miami-Dade Police Department February 3, 1990/ Assault-Batt Domestic/ Miami-Dade Police Department February 13, 2004/ Counterfeiting-BW Vending Goods with Forged Counterfeit Label/ Miami-Dade Police Department. Petitioner responded by letter dated January 18, 2011, which stated as follows in relevant part: . . . [Y]ou asked for documentation and details on the following items: March 25, 1989/Carrying a Concealed Weapon/Miami-Dade Police Department. February 3, 1990/Assault-Batt Domestic/Miami-Dade Police Department. February 13, 2004/Counterfeiting-BW (i.e., Bench Warrant) Vending Goods with Forged Label/MDPD. Re:#1-- This incident was over two decades ago and my specific recollection may not be exact. . . but I believe it was an arrest caused by my harmlessly carrying a concealed weapon (type not recalled) with no connection to violence or threat or accusation of violence. (Please note that for most of the last 25 years, I possessed a CWP in one of two states). I also tend to believe the charge/case was disposed without penalty. I am writing to the Miami-Dade Clerk of Courts for a copy of their record of this incident and will forward the same to your office within 2-3 weeks. Re:#2-- Likewise, this incident was over two decades ago and my specific recollection may not be exact. . . but I believe it was an arrest stemming from a verbal quarrel between I and my ex-wife, who subsequently made a partially-false complaint to the police. I also tend to believe that the charge/case was dismissed for "lack of prosecution"/ cooperation (on her part). Again, I am writing to the Miami-Dade Clerk of Courts for a copy of their record of this incident and will forward the same to your office upon receipt (estimated timeframe: 2-3 weeks). Re:#3-- I do have clear recollection and documentation of this incident. . . It was an arrest caused by a Bench Warrant ("BW") enforced during a routine traffic stop. Specifically, this Warrant originated from my then Probation Officer for "Violation of Probation" for alleged Failure to Meet Probation Conditions of scheduled Fine/Restitution Payments connected to a prior case (#FO31585-- already reported and documented to your office). The out-come being that the "Probation Warrant" was "quashed" (discharged) upon request by my Defense Counselor and the Probation Conditions were "Modified" to accommodate my financial limits. (Please find the pertinent Arrest Affidavit and court reporting document, enclosed).... Petitioner never followed up with the promised information regarding his 1989 arrest for carrying a concealed weapon or his 1990 arrest for domestic violence. The Commission considered Petitioner's application at its regularly scheduled meeting on March 16, 2011, and voted to deny the application. In its Notice of Intent to Deny, the Commission made four factual findings: Petitioner's complete criminal record was not revealed in his application; Petitioner's testimony or evidence in explanation and/or mitigation was unpersuasive; Petitioner's criminal history shows a pattern and practice of criminal behavior over an extended period of time; and Petitioner has not had sufficient time free of government supervision to establish rehabilitation. Those findings of fact led the Commission to make the following conclusions of law: Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence or breach of trust in any business transaction. 475.25(1)(b), 475.181, F.S. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181 F.S. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. At the hearing, Petitioner testified that he should not be held liable for failing to disclose his full criminal record at the time of his application. He stated that he had forgotten the 1989 concealed weapons charge and the 1990 domestic battery offense. When the Division requested more information about these offenses, he promptly provided everything he could recall and undertook to obtain further information from the Miami-Dade Clerk of Courts. Petitioner stated that he in fact obtained that information and provided it to the Division. He did not understand why the information did not appear in the Division's files. Petitioner did not have the information with him at the time of the hearing. Petitioner contested the Commission's conclusions regarding the elements of fraud, misrepresentation, and dishonest dealing as they attached to his multiple arrests and convictions for violations of section 831.05(1)(a), Florida Statutes (2003), which provided: Whoever knowingly sells or offers for sale, or knowingly purchases and keeps or has in his or her possession, with intent that the same shall be sold or disposed, or vends any goods having thereon a forged or counterfeit trademark, or who knowingly sells or offers for sale any service which service is sold in conjunction with a forged or counterfeit service mark, of any person, entity, or association, knowing the same to be forged or counterfeited, shall be guilty of the crime of selling or offering for sale counterfeit goods or services, punishable as follows: If the goods or services which the offender sells, or offers for sale, have a retail sale value of $ 1,000 or more, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Petitioner introduced evidence that credibly supported his contention that he was selling imitation Rolex watches, but that he was not attempting to fool anyone into believing the watches were genuine Rolex products. Petitioner advertised his products in the "South Florida Bargain Trader," with photographs and text that referred to the watches as "Swiss replicas" and offered them for "under $500," far less than the price of a genuine Rolex. Petitioner contended that he intended to fool no one, and that the only person harmed by his activities was the representative of Rolex USA, Inc., who was the complaining witness in each of his cases. Petitioner's contention is less than convincing for two reasons, the first being that it has been expressly rejected by a Florida appellate court. In Stern v. State, 739 So. 2d 1203 (Fla. 4th DCA 1999), the court held that a disclaimer as to the genuineness of the article for sale did not constitute a valid defense to the charge of selling counterfeit goods or services under section 831.05(1)(a): In his third issue on appeal, Stern contends that the trial court erred by failing to give a requested jury instruction on a defense. Stern was charged with violating section 831.05(1)(a), Florida Statutes (1995), which makes it a crime to sell goods bearing a forged or counterfeit trademark with a retail value of $ 1,000 or more. The underlying basis of any statute prohibiting trademark infringement is the avoidance of confusion in the marketplace. See Great S. Bank v. First S. Bank, 625 So. 2d 463, 464 (Fla. 1993). In the factual context of this case, the crime consists of two statutory elements, which are: Goods were sold, offered for sale, or vended having a forged or counterfeit trademark, and Goods had a retail value of $1,000 or more. See § 831.05(1)(a), Fla. Stat. Case law adds a third element, which is that use of the trademark was likely to cause customer confusion in the market place. See Great S. Bank, 625 So. 2d at 469. Regarding the third element of the crime, Stern contended at trial that conspicuously displaying large disclaimer signs at his booth stating that his sunglasses were look- a-likes was a defense to the crime, and he requested that the following instruction be given to the jury: In the event that you find that the Defendant's use of forged or counterfeit trademarks in the marketplace is likely to cause customer confusion, you should still find the Defendant not guilty if you also find that the likelihood of customer confusion would be effectively cured by Defendant's use of disclaimers. The trial court declined to give the requested instruction on the grounds that use of disclaimers could not be a defense in cases involving the sale of goods with counterfeit trademarks to the general public. * * * In this case, the type of product being sold by the owner of the registered trademark was the same type of product being sold by Stern, except that the registered trademark used on Stern's products was not authorized by the owner of the registered trademark. Both products were consumer goods being sold to the general public. Once the counterfeit sunglasses leave the booth, no disclaimer, no matter how prominently displayed at the booth, would give notice to the general public that the sunglasses were not the actual designer sunglasses. Thus, the signs Stern displayed at his booth could never cure the confusion in the general marketplace that both the civil statute and the criminal statute in Florida seek to avoid by prohibiting trademark infringement. During the trial, the trial court properly instructed the jury in this case that before Stern could be found guilty, the state must prove that Stern's use of the forged or counterfeit trademarks in the marketplace was likely to cause customer confusion. The trial court further instructed the jury on the statutory factors approved by the Florida Supreme Court in Great Southern Bank in evaluating the likelihood that confusion exists. The trial court also properly instructed the jury that the "customer" to be considered in evaluating the likelihood of confusion not only included the potential direct purchasers of the counterfeit goods, but also potential purchasers of the trademark holder's goods and members of the public who encounter the counterfeit goods in a post-sale context. See U.S. v. Torkington, 812 F.2d 1347, 1350-53 (11th Cir. 1987) (provided that the confusion contemplated by criminal trademark counterfeiting statutes includes potential confusion by potential purchasers in the public who may not have the ability or opportunity to view disclaimers on display for only direct purchases). On the contrary, we find that the instruction requested by Stern could have misled the jury into thinking that the crime did not occur if the jury concluded the direct purchasers of the counterfeit sunglasses sold by Stern knew that Stern's sunglasses were look-a-likes. Therefore, the requested defense instruction was improper, and the trial court properly denied giving the requested instruction. 739 So. 2d at 1206-1207. The second reason for rejecting Petitioner's argument is the repeat nature of his offenses. Even if one accepts that Petitioner believed in good faith that identifying his products as "Swiss replicas" made it lawful to sell imitation Rolex watches, his first arrest and appearance in court should have disabused him of this belief. On March 28, 2002, the court withheld adjudication, but nonetheless ordered Petitioner to pay $2,702.25 in restitution for the cost of the investigation as well as court costs. Petitioner could not have left the courtroom believing that he had been exonerated. He continued to sell his "Swiss replica" Rolex watches in knowing violation of section 831.05(1)(a). He was arrested twice more for the same offense and convicted of a third degree felony violation of the cited statute on each occasion. Petitioner conceded that after his first arrest, he knew it was against the law to sell imitation Rolex watches, but that he did it anyway because he needed the money. Petitioner testified that his conviction on three counts of battery upon a law enforcement officer was based upon a false charge. He testified that during one of his arrests for selling replica Rolex watches, he fled from the police, who used excessive force in apprehending him then charged him with battery. Petitioner stated that he pled no contest to the charges on advice of his lawyer. Petitioner attempted to make a case that the Commission treated him unfairly at its March 16, 2011, meeting. His chief claim was that other applicants with offenses far more serious than his were approved by the Commission because those applicants were represented by counsel at the meeting. Petitioner offered the testimony of his fiancée to bolster this claim, but submitted no documentation in support of this highly subjective assertion, which cannot be credited. Petitioner offered little evidence to demonstrate his rehabilitation, as opposed to rationalizations and justifications for his criminal behavior. He testified that he made high marks on his real estate course work. At the time of the hearing, he stated that he had been off supervised probation for two or three years. He states that he is currently in the business of selling legitimate merchandise, and seeks a real estate license to supplement his income. Petitioner noted that he is now nearly 50 years old and is not likely to repeat his past mistakes.2/ Petitioner did not present any disinterested witnesses who could favorably describe Petitioner's dealings in business matters or transactions. Petitioner did not present sufficient evidence to show that he was honest, truthful, trustworthy, had good moral character, or had a good reputation in the community for fair dealing. Petitioner did not present sufficient evidence to show that he was "competent and qualified to make real estate transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence," as required by section 475.17(1)(a), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that: The Florida Real Estate Commission enter a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 14th day of October, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 14th day of October, 2011.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the posthearing memorandum and the entire record compiled herein, I hereby make the following relevant findings of fact: Respondent, Alfred Rifflard, Jr., during times material herein, was a licensed real estate broker-salesman and is the holder of license number 0338064. Respondent, Thomas L. Narog, during times material herein, was a licensed real estate salesman and is the holder of license number 0309097. On approximately May 24, 1982, Respondent Narog represented to John F. Wodalski that Respondent Rifflard, as an investor, was interested in purchasing certain real property owned by Wodalski. Based on discussions with seller Wodalski, Wodalski and Respondent Alfred Rifflard entered into a deposit receipt and contract for sale and purchase of the Wodalski property. The purchaser is listed on the deposit receipt contract as Alfred Rifflard and/or assigns." (Petitioner's Exhibit 3) The negotiations for the sale of the subject property were conducted at the bar of a country club where both Respondent Naroq and seller Wodalski were employed. Respondent Rifflard was aware that the subject property had been on the market for approximately eighteen months. Seller Wodalski expressed (to Respondent Narog) disenchantment that he was unable to move the property as he had planned to purchase other properties with the proceeds received from the sale of the subject property. Respondent Narog attempted to sell the Wodalski property to enable him (Wodalski) to purchase the other property. During the negotiations for the sale of the subject property, Respondent Wodalski tendered a copy of his business card to seller Wodalski. That business card reflected that Respondent Rifflard was a licensed real estate salesman. Following the execution of the deposit receipt contract by Respondent Rifflard, Respondent Rifflard showed the property to approximately three prospective purchasers in an effort to sell the property prior to the purported closing date. Federal Land Title Corporation of Ft. Lauderdale, Florida was commissioned to handle the closing of the property from seller Wodalski to Respondent Rifflard and/or his assigns. This is confirmed by a letter dated August 19, 1982 to seller Wodalski wherein loan processor Kathy Bradley advised the seller that she expected to expedite the closing of the Wodalski property. (Petitioner's Exhibit 4) Upon receiving the above-referred letter from Federal Land Title Corporation, seller Wodalski demanded a tender of the $1,000 earnest money deposit which is referred to in the deposit receipt contract executed by Respondent Rifflard. At that time, Respondent Narog was told that no monies could be disbursed to him prior to closing. Seller Wodalski called off the closing based on his claim that another broker advised him that it was illegal for an undisclosed licensed real estate salesman to purchase property in his name. Based on the testimony of Respondents Rifflard and Narog including the testimony of the Petitioner's investigator, Anthony Nicola, who investigated the subject complaint, it is specifically found herein that the Respondents disclosed the fact that Rifflard was a licensed real estate salesman at the time the deposit receipt contract was executed herein. In making this finding, consideration was given to seller Wodalski's testimony to the effect that he was busy 2/ at the time that he entered the deposit receipt contract and that it was indeed possible that Respondent Rifflard tendered a business card to him at the time he entered the subject contract. Paragraph two of the deposit receipt contract reveals that the method of payment includes a $1,000 deposit, in the form of a note, which would be returned to the buyer at closing. It is undisputed by the Respondents that no earnest money deposit note in the amount of $1,000 was given the buyer's attorney to be held in trust until the closing was completed. The Respondents acknowledged that it was an error on their part to fail to execute the earnest money deposit as Respondent Rifflard agreed in the subject deposit receipt contract. Further, Respondent Rifflard urges that his failure to execute a note was an oversight on his part.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That the Respondents, Alfred Rifflard, Jr. and Thomas L. Narog, be privately reprimanded by the Petitioner, Division of Real Estate, based on their failure to place in deposit, to be held in trust, a $1,000 earnest money deposit in connection with the transaction surrounding the deposit receipt and contract for sale and purchase entered into by Alfred Rifflard, Jr., as purchaser of certain real property owned by John Wodalski. RECOMMENDED this 31st day of January, 1984, in Tallahassee, Florida. 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 31st day of January, 1984.
The Issue Whether Petitioner lacks the moral character to be licensed as a Florida real estate salesperson.
Findings Of Fact On May 4, 2004, Petitioner, Rene Anthony Acker, filed an application for licensure with the Florida Real Estate Commission as a real estate salesperson. On that application, Acker revealed that he had pled nolo contendere and was placed on probation for twelve months on July 2, 2003, for fraudulent use of a credit card. At hearing, Acker testified regarding the events that led to his arrest. In November of 2003 during the beginning of the Christmas shopping season, while he was a clerk at a Target Department Store, a person of interest to local law enforcement for credit card theft and who was under surveillance, presented merchandise to Acker for purchase with a credit card. The card was in the name of someone other than the customer. The card was accepted by Acker and the system, and the transaction completed. Subsequently, the customer returned with a high- dollar item and attempted to purchase it with the same credit card. Acker accepted the card, but the system refused to accept the card on the second occasion. Several months later, the deputy sheriff, who was working the case, came to Acker and asked him to identify the customer as part of an effort to make a case against the customer, a person with whom Acker was acquainted as the son of the owner of a restaurant where Acker had worked as a waiter. Acker told the deputy that he had no independent recollection of the transaction, and could not identify the customer from the surveillance camera pictures he was shown. The deputy indicated that if Acker did not cooperate and identify the individual, Acker would be charged with credit card fraud. Acker stated that he could not identify the customer from the photographs as the person with whom he was acquainted. Acker was subsequently charged with credit card fraud. After consulting an attorney, Acker pled nolo contendere to the charge. It was clear that this was a plea of convenience under the plea agreement that was worked out. The only evidence introduced by the Commission was Acker's file that reflected that Acker revealed the plea on his application and the court records of his plea, probation, and early release from probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: It is recommended that application of Petitioner be granted pursuant to the Commission's discretion upon consideration of the matters presented in mitigation. DONE AND ENTERED this 12th day of August, 2005, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN 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 12th day of August, 2005. COPIES FURNISHED: Rene Anthony Acker 138 Via Tisdelle Orange Park, Florida 32073 Barbara Rockhill Edwards, Esquire Department of Legal Affairs Administrative Law Division The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Guy Sanchez, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801
Findings Of Fact In the beginning of the hearing, proof was made that the Respondent, William W. Buchanan, was a licensed real estate salesman in the State of Florida, in an active capacity from June 18, 1973 thru March 31, 1976. This proof was established through Petitioner's Exhibit no. 1, which is a certification and copies of the real estate registration document. The Respondent, while employed by Joe Z. Lovingood, Inc., his corporate broker employer, took checks from the corporate check book. Three of the checks that were taken from that checkbook were forged by making the Respondent the payer and showing the signature of Joe Z. Lovingood. These checks were dated May 7, 1974, and May 31, 1974. There were two checks of May 7, 1974 for $600 and 2,500 respectively and the May 31, 1974 check was for $500. The Petitioner's Exhibit no. 2 is a xerox copy of the aforementioned checks. The originals of the checks were not produced because they are in the care and custody of the State Attorney's Office for Sarasota County, Florida. The owner of Joe Z. Lovingood, Inc., Mr. Joe Z. Lovingood, did not allow these acts, nor allow any employee within his employ to authorize the Respondent to take the checks from the check book to make the checks payable to the Respondent nor to forge Mr. Lovingood's signature. Furthermore, neither Mr. Lovingood nor any employee of his corporation who was acting upon his authority allowed the Respondent to negotiate these checks, although the Respondent did negotiate them and expend the funds for his own personal use. The exhibits which show the Respondent's negotiation of the checks are Petitioner's Exhibits no. 3 and no. Petitioner's Exhibit no. 3 is a copy of a bank statement of the Joe Z. Lovingood corporation which indicates debits placed against the corporate bank account in the amount of the aforementioned checks. The Petitioner's composite Exhibit no. 4 shows copies of the forged checks with the endorsement signature on the back together with deposit credits, found in the bank statement on the Respondent's account. In addition, the testimony of the bank official of the Respondent's bank indicated a partial cash withdrawal from the amount of the $600 and $500 checks which were negotiated through the Respondent's bank. Joe Z. Lovingood, Joan Lovingood, his wife, and Harold Merritt, the former accountant for Joe Z. Lovingood, Inc., established that the Respondent had told them about taking the checks from the corporate checkbook, and forging the signature of Joe Z. Lovingood after practicing to sign the signature. They also testified that the Respondent told them that he had intercepted bank statements at the post office in order to cover up the theft of the checks and subsequent forgery. After the discovery of Mr. Buchanan's acts, Mr. Lovingood notified the Petitioner. In addition after consultation with his legal adviser and the prosecutors of the jurisdiction, he determined to give the Respondent an opportunity to reimburse Joe Z. Lovingood, Inc. To accomplish this end, Mr. Lovingood co-signed a note in the amount of $3,000 which the Respondent took out in order to improve Mr. Buchanan's financial position. The Respondent agreed to pay back the $3,600 that he had taken from the corporation together with interest and also to repay the $3,000 loan with interest. A statement of his agreement can be found in his letter of July 8, 1974, addressed to Joe Z. Lovingood, as President of Joe Z. Lovingood, Inc., which is Petitioner's Exhibit no. 5 and in his letter of July 8, 1974, addressed to the National Bank of Sarasota which is Petitioner's Exhibit no. 6. Through the date of the hearing, these funds had not been paid to the National Bank of Sarasota. In August of 1974, the Respondent entered into discussion with one Walter E. Lingard about the purchase of real estate. Out of the conversation a deposit was made in the amount of $200 and a receipt for deposit, offer to purchase and contract for sale was entered into by the Respondent and Mr. Lingard. Mr. Lingard was approached by Mr. Buchanan on the question of the purchase of property and informed him that a better piece of property was available in another location and the $200 deposit would be allowed as a partial deposit on the substituted parcel. The contract document on the first parcel contemplated for purchase is Petitioner's Exhibit no. 9. Petitioner's Exhibit no. 10 is a copy of the check from Mr. Lingard and Petitioner's Exhibit no. 11 is a copy of the contract pertaining to the substituted parcel of land. The deposit check was written to William Buchanan at the request of William Buchanan who told Mr. Lingard that he would see that it was placed with his employer, Joe Z. Lovingood, Inc. In September of 1974, the Respondent entered into a conversation with one Hans Hellmann. The nature of this conversation concerned the investment of Mr. Hellmann's money in a real estate purchase. To this end, Mr. Hellmann deposited $2,500 with the Respondent through a check made out to William W. Buchanan. Again, this check was made out to Mr. Buchanan at his request with an assurance to Mr. Hellmann that the deposit would be placed with Joe Z. Lovingood, Inc. The Petitioner's Exhibit no. 7, is a copy of a contract document and Petitioner's Exhibit no. 8 is a copy of the deposit check. Neither Mr. Joe Z. Lovingood nor any employee within his corporation knew of the negotiations, contracts or deposit checks which had been entered into between Mr. Lingard and the Respondent and Mr. Hellmann and the Respondent. Mr. Lovingood found out about these matters when his office was contacted about the status of one of the contracts. Joe Z. Lovingood, Inc. did not receive the deposit checks, at any time. The proceeds of the deposit checks that have been mentioned, were appropriated to the use of the Respondent, without the knowledge and authority of Mr. Joe Z. Lovingood or any employee within his corporation. Restitution for the amounts of the deposit checks has never been made to Mr. Lingard or Mr. Hellmann. The details of the contracts and the fact that the money was appropriated to Mr. Buchanan's use, were related by the Respondent, to Mr. Joe Z. Lovingood, his wife and Mr. Merritt.
Recommendation It is recommended that the registration of the registrant, William W. Buchanan, be revoked. DONE and ORDERED this 18th day of June, 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: William W. Buchanan 503 North Brink Avenue Sarasota, Florida 33577 Charles C. Felix Associate Counsel Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789
