Findings Of Fact Respondent, Joan B. Cross, is a registered real estate salesperson holding certificate number 0018497. On her application for registration in November, 1972, in answer to question 9 pertaining to having been arrested for or charged with the commission of an offense against the laws of the municipality or state, she answered "yes". She completed the "If yes, state details in full" question with "careless driving, 7-27-69 DWI 1970". Exhibit 2, Certified Copy of Court Record, shows that on May 6, 1965 Respondent was convicted of disorderly conduct and fined $15.00. Exhibit 3 and 4, Certified Records from the Criminal Court of Record, show that on June 9, 1969 Respondent was charged with, and found guilty of, unlawful possession of marijuana and of contributing to the dependency of minors. Adjudication of guilt was withheld and Respondent was placed on probation for 18 months. Testifying in her own defense Respondent acknowledged both offenses. With respect to the disorderly conduct charge, she stated she forgot to include that on her application. Following a lunch birthday party the group retired to a bar and when they became too noisy the police came and took them to the police station. With respect to the charges of possession of marijuana and barbiturates she testified that she was represented by counsel who advised her after the trial that she was not adjudicated and that she could forget the incident. She testified that she understood all record of this incident had been expunged, and that she could forget it. She also testified she didn't fully understand withholding adjudication of guilt. In this regard it is noted that she pleaded guilty to possession of marijuana and nolo contendere to the charge of contributing to the dependency of minors.
The Issue Whether Petitioner is entitled to attorneys’ fees, pursuant to sections 57.105, 57.111, and 120.595, Florida Statutes, for defending the underlying overpayment claim filed by Respondent.
Findings Of Fact Parties Petitioner, Artem Joukov, is a member of the Florida Bar, and was employed as an Assistant State Attorney in the Office of the State Attorney of the Second Judicial Circuit (“State Attorney’s Office” or “SAO”) from April 29, 2016, to February 20, 2018. Petitioner claims to be the sole proprietor of an unincorporated investment company, of which he is the only employee. In support of this claim, Petitioner introduced in evidence the 2016, 2017, and 2018 account activity statements from his individual stock portfolio and other equity investments made through the platform, Interactive Brokers, LLC, whose business address is in Greenwich, Connecticut. The year-end value of Petitioner’s account did not exceed $250,000 in any of the three referenced years. Respondent, the State Attorney’s Office, is a government entity which qualifies as a state agency pursuant to section 120.52, Florida Statutes (2019). Respondent did not employ Petitioner as an investment advisor or otherwise utilize Petitioner’s investment skills. Underlying Overpayment Claim Respondent terminated Petitioner’s employment on February 20, 2018. Respondent paid Petitioner through the end of the pay period on February 28, 2018. Petitioner’s final paycheck included $940.04 for days subsequent to his termination (days on which he did not work). As of the date of the final hearing, Petitioner had not reimbursed Respondent for the overpayment.3/ Carol Houck is the Human Resource Administrator and Purchasing Administrator for the State Attorney’s Office. Ms. Houck’s primary job duties include administration of both the personnel hiring and separation processes. Ms. Houck discovered the pending overpayment while processing payroll records after Petitioner was terminated. On February 26, 2018, Ms. Houck notified Petitioner of the overpayment, via electronic mail (“email”), and requested Petitioner repay that amount as soon as possible via check to the SAO. On February 27, 2018, Petitioner responded, “Of course!” Petitioner then inquired whether Respondent could retrieve the overpayment from his deferred compensation account. Petitioner explained that, as he had not yet obtained new employment, he would not be in a position to repay that amount if the scheduled deduction from his final paycheck had been made to his deferred compensation account. Petitioner requested Respondent “give [him] some additional time” to repay the money if it could not be pulled from his deferred compensation account. Ms. Houck discussed the issue with Mary Dean Barwick, the Executive Director for the State Attorney’s Office. Ms. Barwick is primarily responsible for the overall administrative management of the SAO, including oversight and management of the budget and expenditures. The following day, February 28, 2018, Ms. Houck responded to Petitioner with an offer to use Petitioner’s accrued leave hours to cover the overpayment, rather than disrupt his deferred compensation account. She explained that, after deduction for the overpayment, Petitioner would have a balance of approximately 12 hours of accrued leave, which Respondent could either transfer, or pay out, to Petitioner. Petitioner responded on the same date rejecting Respondent’s offer to recoup the overpayment from his accrued leave. Instead, Petitioner explained that he preferred reversal of the automatic deposit to his deferred compensation account rather than recoupment from his accrued leave. In lieu of accepting that method, Petitioner requested more time to submit the repayment. The following day, March 1, 2018, Ms. Houck replied, “We will give you until March 31st to remit payment.” Petitioner immediately replied, “Ok, thank you.” On March 12, 2018, Petitioner became employed by the Department of Business and Professional Regulation (“DBPR”). On that same date, Petitioner sent an email to Ms. Houck stating that he no longer wished Respondent to secure repayment from his deferred compensation account and that the best method of repayment would be in installments by the end of April. He proposed to pay $337.05 by March 31, 2018, and the remaining balance by April 30, 2018. On March 28, 2018, Ms. Houck rejected this offer and replied with a request that Petitioner pay the amount in its entirety by March 31, 2018, in accordance with the payment plan agreed to on March 1, 2018. Ms. Houck further stated that she would transfer his accrued leave hours to DBPR once Respondent received the repayment. Petitioner made no payment to Respondent on March 31, 2018, or on any date thereafter. On April 6, 2018, Ms. Barwick sent the following email to Petitioner: We have received guidance from the Bureau of State Payrolls [sic]. Their procedures are [sic] immediate collection of the overpayment. Once the deadline we establish is not met and you have been notified twice (by certified mail), then we can proceed with the collection process. The Bureau of State Payrolls would proceed by collecting the overpayment from your current wages and remitting the funds directly to us. We feel it would work better for both parties to reach an agreement on the repayment date. Please advise us on the most current date you can remit your overpayment. I will be glad to answer any questions you may have on this matter. Thank you. On April 7, 2018, Petitioner responded, recounting the various communications he had received regarding repayment of the overpayment, and requesting Respondent to cite the applicable administrative rules under which it was pursuing repayment. He also requested contact information for a representative at the Bureau of State Payroll (the “Bureau”) to help him understand his rights as an employee. In the same response, Petitioner stated that he did not believe Respondent’s action withholding Petitioner’s leave hours was permissible and requested Respondent to transfer the leave hours to DBPR. On April 9, 2018, Ms. Barwick requested Petitioner’s telephone number in an effort to discuss a repayment schedule. Petitioner responded that he wished to continue using email communication to have a record of their correspondence. Petitioner reiterated his requests for transfer of his leave hours and contact information for someone at the Bureau. On April 10, 2018, Ms. Barwick replied, “Your overpayment of wages is due immediately.” She stated that the governing regulations were the Classification and Pay Plan for State Attorneys of Florida. Ms. Barwick offered to transfer Petitioner’s leave hours if they could agree to a repayment schedule, and expressed that she would rather avoid the collection process outlined in her prior email. Finally, she requested a good time to call and discuss the issue. In his response that same day, Petitioner reiterated his desire to keep discussions in writing via email, for record- keeping purposes. He further stated he had contacted the DBPR Human Resources Department to determine whether a portion of his wages could be redirected to the Respondent on a monthly basis. Petitioner stated he was unable to discuss a repayment plan with Ms. Barwick until he had that information. Petitioner again requested Respondent either transfer his leave hours or provide the statute authorizing Respondent to withhold his accrued leave. On April 12, 2018, Ms. Houck, transferred Petitioner’s accrued leave to DBPR. Petitioner filed a complaint regarding Respondent’s efforts to recoup the overpayment with the Florida Commission on Human Relations (“FCHR”) some time between April 11 and 19, 2018.4/ On April 19, 2018, Ms. Barwick emailed Petitioner a proposed reimbursement agreement for his review. The proposed agreement would have required Petitioner to repay the overpayment in two installments--on June 1 and July 1, 2018. Petitioner responded that he would not be engaging in repayment negotiations until the FCHR had the opportunity to conclude its investigation.5/ After the parties failed to reach an amicable repayment plan via email, Respondent initiated the formal collection process. On May 2, 2018, Respondent sent the following letter to Petitioner via certified mail to his home address in Tallahassee: Dear Mr. Joukov: As we have outlined in numerous email correspondence, you were overpaid by the Office of the State Attorney for 48 unearned hours in the amount of $940.04. This overpayment occurred as a result of your separation from the office after payroll had closed in February 2018. Despite repeated requests, to date, we have not received any monies due back to the State for this overpayment. Please accept this letter as our demand to repay this full amount by the close of business, May 21, 2018. You may be entitled to a hearing under Section 120.57, F.S., or other rights under Section 120.569, F.S. However, please note that employees of the Office of the State Attorney are exempt from Career Service System provided in Ch. 110, F.S., and are governed by the Classification and Pay Plan for the State Attorneys of Florida. You will be expected to repay the net amount received plus federal taxes due if the net amount is not fully repaid in the same calendar year in which it was paid. This letter represents the notice required by and is in compliance with the process for collecting salary overpayments issued by the Bureau of State Payroll. Petitioner intentionally failed to retrieve the certified letter from the post office. On May 15, 2018, Respondent sent the letter again by certified mail to the General Counsel’s Office at DBPR. The letter was identical except that it set a deadline of May 31, 2018, for Petitioner to repay the full amount. Petitioner received this letter via interoffice mail at DBPR. Petitioner did not respond to the letter. On June 15, 2018, Respondent personally served the letter via sheriff’s deputy to Petitioner at his office at DBPR. Again, the letter was identical to the May 2 and 15 letters, with the exception of a June 28, 2018, due date for full payment. Copies of the May 2 and 15 letters were included with the June 15, 2018 hand-delivered letter. Petitioner did not respond to the June 15, 2018 letter. On or about July 19, 2018, Petitioner filed a complaint with the Florida Bar against one of his former colleagues at the SAO. On July 30, 2018, Petitioner alerted the Florida Bar to a pending address change, notifying the Bar of his intent to move to California on August 1, 2018. In this correspondence, he included his parent’s address in Gulf Shores, Alabama, as the interim contact while he established a permanent address in California. Having had no response from Petitioner, Respondent forwarded the demand letters and other information to the Bureau to execute the process for garnishing Petitioner’s DBPR wages. On July 30, 2018, Constance Hosay, Financial Administrator with the Bureau, sent a letter to DBPR authorizing miscellaneous deductions from Petitioner’s paycheck beginning with the next bi-weekly payroll. The letter directed DBPR to remit the monies to the SAO once collected via miscellaneous deduction. Ms. Hosey informed Petitioner, via email on July 31, 2018, that the Bureau would begin garnishing his wages to reimburse Respondent. Petitioner then reached out to the Division to determine how to request a hearing on the matter. At the direction of Division staff, Petitioner sent an email to Mr. Campbell that same date requesting an administrative hearing. Petitioner voluntarily separated from employment with DBPR on August 2, 2018. On August 9, 2018, Respondent forwarded Petitioner’s request for hearing to the Division. On August 15, 2018, Respondent followed up with a letter to the Division attaching, as the agency action letter, the personnel action request documenting Petitioner’s termination date, the salary refund calculations made by payroll, and the payroll calendar. None of the documents forwarded to the Division from the SAO contained an address for Petitioner. Respondent filed the first pleading--a Notice of Appearance by Eddie Evans on behalf of Respondent. The certificate of service noted an address for Petitioner in Gulf Shores, Alabama. The SAO had knowledge that Petitioner had moved from Florida to California. The SAO had knowledge of Petitioner’s parents’ address as an interim contact from the separate Florida Bar complaint. The Division entered the Gulf Shores, Alabama address in its case information system as the address for Petitioner. Petitioner’s first pleading was filed on August 23, 2018, and contained his address in Los Angeles, California, in his signature line. However, Petitioner never filed a notice of change of address or otherwise notified the Division of his correct address. Throughout the underlying repayment claim, the Division mailed all orders to the Gulf Shores, Alabama address. On August 28, 2018, Petitioner filed a motion to dismiss the underlying overpayment claim on grounds that the documents upon which his request for hearing were predicated did not constitute a valid agency action letter and point of entry. Following a telephonic hearing on the motion, the undersigned granted the motion on October 2, 2018, and dismissed the case, with leave to amend. The undersigned gave Respondent 15 days to serve Petitioner with a notice of agency action which complied with Florida Administrative Code Rule 28-106.111 and section 120.569(1), Florida Statutes. On October 18, 2018, Respondent’s current counsel entered a notice of appearance and a Response to the Order Granting the Motion to Dismiss (“Response”). In the Response, Respondent explained that, subsequent to the Order, it had determined that the State of Florida “is no longer withholding any [of Petitioner’s] funds which represented the underlying basis of this proceeding.” Respondent stated that the proceeding was initiated with Respondent’s notice that it intended to collect “funds held by the State of Florida” as reimbursement for the overpayment. Further, Respondent explained, “Because the State of Florida no longer holds those funds, the due process to be afforded the Respondent through this forum is no longer applicable.” On October 19, 2018, Petitioner filed a Motion for Extension of Time to File Motion for Costs and Attorneys’ Fees, seeking an extension of 30 days to file a motion for attorneys’ fees to comply with the safe harbor provision under section 57.105. The undersigned denied the motion and indicated that Petitioner could subsequently file a motion for fees and costs which would initiate a new case separate from the underlying overpayment claim. The undersigned closed the file of the underlying overpayment claim and relinquished jurisdiction of same to the SAO on October 25, 2018. Petitioner filed a Notice of Service of a Motion for Sanctions pursuant to section 57.105 on October 26, 2018. On October 29, 2018, Petitioner filed his Amended Motion seeking fees under sections 120.595 and 57.111. On November 19, 2018, Petitioner filed an addendum to his Amended Motion seeking fees pursuant to section 57.105. Petitioner engaged in the underlying overpayment claim in his individual capacity as a former employee, not as a small business entity or investment company.
Conclusions For Petitioner: Artem Mikhailovich Joukov, Esquire 2651 Ellendale Place, Apartment 304 Los Angeles, California 90007 For Respondent: Michael P. Spellman, Esquire Mitchell J. Herring, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint filed against the respondent on September 9, 1981 be DISMISSED. Respectfully submitted and entered this 11th day of May, 1982, in Tallahassee, Florida. DIANE D. TREMOR, 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 11th day of May, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire CONRAD, SCHERER & JAMES 707 Southeast Third Avenue Post Office Box 14723 Ft. Lauderdale, Florida 33302 Philip Jansen, Esquire JANSEN & DE GANCE, P.A. Post Office Box 7375 Ft. Lauderdale, Florida 33304 Mr. C. B. Stafford Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in a business transaction and, if so, what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been licensed in the State of Florida as a real estate broker-salesman, holding license number 0476966. On May 21, 1990, while employed as a broker-salesman by Active One Realty, Inc., Respondent obtained a contract from Steven Mead to purchase a parcel owned by Dr. Samuel Martin. The contract, which was signed by Mr. Mead on May 21, recites that Active One Realty is holding the earnest money deposit. Dr. Martin signed the contract on May 26, 1990, which was four days prior to the expiration of the time for acceptance. Pursuant to the contract, closing was set for no later than June 2, 1990. A day or two prior to the closing, the buyer decided not to purchase the parcel. When the deadline for closing passed without further communication from the buyer or Respondent, Dr. Martin's listing broker, Robert Martin (no relation) contacted Susan Cobb, who is in charge of Active One Realty, Inc. In response to Mr. Martin's request for information about the closing, Ms. Cobb told him that her office had no record of the contract and was holding no earnest money deposit in connection with the transaction. In fact, Respondent failed to obtain the earnest money deposit from Mr. Mead prior to presenting the contract to Mr. Martin for consideration by the owner. Intending to obtain the deposit later in the day on May 21, Respondent first presented the contract to save time," according to his own testimony. Respondent did not offer to explain why, after not obtaining the deposit later in the day, he failed to inform his employing broker, Mr. Martin, or Dr. Martin of the misrepresentation contained in the contract concerning the earnest money deposit. Respondent has not previously been disciplined. About six months after the events described above, Respondent, in his capacity as a broker-salesman, procured the sale of the subject parcel.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of violating Section 475.25(1)(b), imposing an administrative fine of $500, and placing his license on probation for one year, during which time he shall complete successfully such additional training in ethical and other matters pertaining to his profession as the Commission shall require; provided, however, that if he fails to complete successfully the additional training that the Commission orders with the one-year period, his license shall be suspended for a period of two years, commencing with the end of the probationary period. ENTERED this 19 day of June, 1991, in Tallahassee Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19 day of June, 1991. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Steven W. Johnson, Senior Attorney Department of Professional Regulation P.O. Box 1900 Orlando, FL 32801-1722 Anthony Jesus Torres 1074 Chesterfield Circle Winter Springs, FL 32708
The Issue Whether Respondent's real estate broker's license should be disciplined for fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in any business transaction, pursuant to Section 475.25(1)(b) Florida Statutes(1983).
Findings Of Fact At all times pertinent to the charges, Respondent Thomas F. Steffan Jr. was a licensed real estate salesman having been issued license number 0402257. Respondent has since been issued a license as a real estate broker, same license number. Mr. and Mrs. Walther Ellis were the owners of certain property located on Windsor Road, Bonita Springs, Florida. Mr. and Mrs. Ellis listed their property for sale with Wesley Brodersen of Gulder Real Estate, Inc. in Bonita Springs, Florida. The Respondent was employed at Gulder Real Estate, Inc. during the time that the Ellises listed said property with Gulder Real Estate, Inc. On or about May 23, 1984, the Respondent solicited and obtained a Catherine A. Griffin as a prospective purchaser of the Ellis' property. Mrs. Griffin submitted a contract for sale and purchase, witnessed by Respondent, which contract for sale and purchase the Respondent in turn submitted to the Ellises. Pursuant to the terms of the May 23, 1984 contract for sale and purchase, Mrs. Griffin had placed down a total deposit of $5,000.00. The Ellises rejected the terms of sale (offer) as expressed in the May 23, 1984 contract for sale and purchase. Thereafter, Mrs. Griffin, as buyer, along with her husband, Donald Griffin, who is not a buyer in the transaction but was intimately involved in the negotiations, continued to express an interest in the property and the Ellises continued to express an interest to sell the property. In July, 1984, contract negotiations were once again begun and Mr. Griffin informed the Respondent what terms would be acceptable to his wife, Catherine A. Griffin. Mr. Griffin further requested that the signatures of Mr. and Mrs. Ellis be obtained first on a new contract for sale and purchase setting out the terms he had dictated to Respondent. Somewhere during this time period, Mr. Griffin directed Respondent to have completed a survey of the property at the Griffins'expense. Respondent next communicated with Mr. Ellis and a new contract for sale and purchase was prepared by the Respondent and signed by Mr. Ellis personally and signed by Mr. Ellis for Mrs. Ellis with Mrs. Ellis' express consent and permission. Subsequent thereto, the Respondent brought the new contract for sale and purchase to the Griffins. In the presence of Mr. and Mrs. Donald Griffin the Respondent presented the offer. Mr. Griffin immediately signed the new contract for sale and purchase in the presence of both Respondent and Mrs. Griffin on the line indicating he was signing as a witness to the buyer's signature/execution. However, as this contract (offer) was physically handed by Mr. Griffin to his wife for formal execution, it was further reviewed by Mr. Griffin, who became aware that the terms of purchase contained in the new contract for sale and purchase were not as he had dictated them to the Respondent. Mr. Griffin advised his wife not to accept the offer, instructed her not to sign, and, in fact, the new contract for sale and purchase was not signed or accepted by Mrs. Griffin. Respondent requested that the Griffins think about the offer for a while longer and they agreed to do so over an extended vacation. While the Griffins were on vacation, the Respondent, apparently believing the offer contained in the second contract for sale and purchase would eventually be accepted, notified Mr. Ellis that the offer had already been accepted. Believing that the offer had been accepted by a bona fide purchaser, Mr. Ellis requested a copy of the signed contract. Due to the fact that the Respondent did not have a contract signed by a bona fide buyer (Catherine A. Griffin) but believing that one would be obtained in the very near future because Donald Griffin had signed the second contract and because Donald Griffin had indicated that he could finance the entire operation by himself, the Respondent caused a photo copy of the signature of Catherine A. Griffin to be placed onto the second contract without the permission , consent, or knowledge of either Donald Griffin or Catherine Griffin. The altered copy of the second contract is apparently no longer in existence and did not come into evidence. The only real point of contention in the parties' respective proposed findings of fact and conclusions of law is concerning what representation was made by Respondent to Mr. Walther Ellis concerning who had accepted the second contract. Respondent admits he represented to Mr. Ellis that Mr. Griffin, controlling the transaction for buyers, had accepted the second contract. Mr. Ellis maintained that Respondent represented to him that the second contract had been accepted on his terms but he is not clear·whether Respondent told him Mrs. Griffin accepted it or who accepted it. (Walther Ellis Deposition Page 22). Mrs. Ellis's testimony presents no independent confirmation of any of this as her information in all respects is second-hand. Mr. Brodersen's testimony is that the Respondent's representation to him was that "the Griffins" had accepted the second contract for purchase and sale and that Respondent told Mr. Ellis the same thing in Brodersen's presence and also told Brodersen that the last copy of the signed contract had been mailed to Mr. Ellis by Respondent the day previous to this three-way conversation. Mr. Brodersen thought Mr. Ellis never got the fraudulent contract but testified further that Respondent later admitted to Brodersen that he had altered this copy of the second contract so as to fraudulently reflect Mrs. Griffin's signature and further admitted to Brodersen that he, Respondent, had mailed that fraudulent copy to Mr. Ellis. Mr. Brodersen never saw the fraudulent contract. Mr. Ellis testified to receiving in the mail a copy of the second contract with a suspicious-looking set of signatures which he turned over to his attorney. The parties stipulated the attorney does not now have the contract copy. By itself, the testimony of Investigator Jacobs that Respondent by telephone admitted falsifying Mrs. Griffin's signature onto a copy of the second contract for purchase and sale and further admitted destroying one copy of the fraudulent contract would fail as not having the proper predicate for voice identification. However, in light of Mr. Ellis's and Mr. Brodersen's testimony, Mr. Jacobs' testimony on Respondent's creation of the fraudulent document is accepted as corroborative pursuant to Section 120.58 Florida Statutes. The remainder of his testimony is rejected. At no time did Catherine A. Griffin and/or Donald Griffin as her agent or on his own behalf accept the Ellis' offer contained in the second contract for sale and purchase nor did Catherine A. Griffin nor Donald Griffin ever execute the second contract as a buyer. The transaction was never closed and Mrs. Griffin was returned her deposit money when she requested it in September 1984. Mr. Ellis admits having told Respondent he was not anxious for the deal to close and did not care if the deal failed to go through. Mr. Griffin spoke at length and with considerable feeling at the hearing of his desire that Respondent not receive a permanent record as a result of a single mistake committed while under stress from Respondent's father's medical condition. That Respondent was under such stress when all this occurred was confirmed by Mr. Brodersen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered whereby Respondent Thomas F. Steffan Jr.'s licenses as a real estate salesman and broker be suspended for a period of one year and that he pay an administrative fine of $1,000.00. DONE and ORDERED this 8th day of October, 1985, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 8th day of October, 1985. COPIES FURNISHED: James T. Mitchell, Esquire Staff Attorney Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Thomas F. Steffan Jr., Pro Se 18645 Sandpiper Road Ft. Myers, Florida Harold R. Huff, Director Department of Professional Regulation-Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Fred Roche, Secretary 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact James W. Collins was first licensed in Florida as a real estate salesman in 1978 and has been continuously so licensed since that time. At all times relevant hereto, he was licensed as a real estate salesman. On January 14, 1983, Respondent pleaded nolo contendere to three counts of grand theft, adjudication of guilt was withheld and he was placed on probation for five years. Conditions of probation included residing in the Department of Corrections for 300 days and making restitution. On January 14, 1983, Respondent Pleaded nolo contendere: to uttering a forged instrument (using a stolen credit card), adjudication of guilt was withheld and he was placed on five years probation to run concurrently with the probation noted in Finding 2. On January 14, 1983, Respondent pleaded nolo contendere to five counts of forgery, involving the same stolen credit cards in 3 above, adjudication of guilt was withheld and he was sentenced to the same five years probation and conditions of probation as in 2 and 3 above. In an application for licensure as a real estate broker sworn to on June 20, 1984, Respondent answered question 8, which asks if applicant has ever been arrested or charged with the commission of an offense, "No." In the addendum to this application which also contains the signature of Respondent, he answered the rephrased question 8, "No."
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent has been a real estate salesperson in the State of Florida, having been issued license number 0611282. At all times material hereto, Respondent was employed by Steven J. David at Century 21 Tri City Realty, Inc., in Fort Lauderdale as a licensed real estate salesperson. Her duties were selling and leasing real estate and managing properties owned by her employer. She was paid a commission on transactions she handled. In November 1996, Mike Nickas began receiving late notices from various mortgage companies which held mortgages on properties owned by him and David. He and David began investigating how that could be. They discovered that Respondent had written seventeen checks totaling in excess of $8,000 during 1996 from the business accounts payable to "cash" or to herself and had forged Nickas' signature to those checks. Those payable to "cash" were endorsed and cashed by her. Respondent was not a signatory on those accounts. In order to hide her theft, Respondent wrote in the checkbook that each check was "void" or wrote false entries as to the amount of the check and the payee. Further, when the bank statements arrived at the business each month, Respondent removed the unauthorized checks from the envelope. Respondent was not authorized to sign Nickas' name to any of those checks. Further, Respondent was not authorized to write those checks payable to herself or to write them payable to "cash" and then cash them herself. When David and Nickas confronted Respondent with their discovery, she admitted that she had written the checks without authorization. Respondent's employment was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations in the Administrative Complaint filed against her and revoking her license as a real estate salesperson. DONE AND ENTERED this 13th day of October, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 13th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, No. N 308 Orlando, Florida 32801 Stephen Post, Esquire 600 South Andrews Avenue Fort Lauderdale, Florida 33301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue Whether the license of Respondent, O. Tom Macon, should be suspended, or whether other disciplinary action should be imposed.
Findings Of Fact The Respondent, O. Tom Macon, is a registered real estate salesman residing in Fort Myers, Florida, who holds License number 0054554 as a real estate salesman. On April 20, 1978, an administrative complaint was filed against the Respondent alleging that he was guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing, trick, scheme or device, culpable negligence, or breach of trust in a business transaction. The Respondent requested an administrative hearing. In January of 1974, Mr. James Fortiner, Dr. David Brown, and Respondent Macon purchased the Professional Arts Building in Fort Myers, Florida. The transaction was documented by a deed from the seller to the Respondent as trustee. Title was transferred to a corporation, Professional Arts Building of Fort Myers, Inc., in December of 1974. James Fortiner transferred his interest in the property to Respondent Macon, leaving the Respondent with a two-thirds interest in the property and Dr. Brown with a one-third interest. At a later date Respondent Macon obtained a $20,000.00 personal loan from a man by the name of Phil Elliott, secured by a second mortgage on the subject property. He did not secure Dr. Brown's permission to mortgage the property or tell him of the encumberance. Subsequently, Respondent Macon contracted to sell the Professional Arts Building to Jeanne L. Eveleth in February of 1976. At the closing in March of 1976, which Dr. Brown did not attend, a check for $33,433.42 was deposited to the account of the Professional Arts Building, Limited. Simultaneously, Respondent Macon paid his personal debt to Mr. Elliott out of the proceeds of the sale and satisfied the mortgage. A final statement established that Respondent Macon owed personal debts to the limited partnership in the amount of $6,972.45, and that the limited partnership owed Dr. Brown this amount of money. After the sale of the property and the payment of Respondent's personal debt out of the proceeds, there were no assets left in the corporation. When confronted with this situation, the Respondent promised Dr. Brown he would pay him the money the Respondent had used without authorization, but in November of 1976, the Respondent went into voluntary bankruptcy. At that time Respondent Macon still owed Dr. Brown the full amount due to Dr. Brown as a result of the sale of the subject property. Bankruptcy, however, has no effect on the authority of Petitioner to discipline. Both parties submitted proposed findings of fact, memoranda of law and proposed recommended orders. These instruments were considered in the writing of this order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends suspension of Respondent O. Tom Macon's license until such time as he makes full restitution to Dr. Brown. DONE and ORDERED this 7th day of July, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. 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. G. Convicted or found guilty or entered a plea of nolo contendre 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. M. 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. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2012.
Findings Of Fact Respondent Starla K. Rose, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0046404. On February 25, 1985, an Information was filed in the Circuit Court of the Seventh Judicial Circuit, Broward County, Florida, charging Respondent with one count of grand theft, Sections 512.014(1)a and b and 512.014(2)b, Florida Statutes, two counts of insurance fraud by false or fraudulent claims Section 517.234(1)(a)1, Florida Statutes; and, one count of false report of the commission of a crime, Section 817.49, Florida Statutes. Respondent pled not guilty to the Information. On June 6, 1985, a verdict was rendered which found Respondent guilty of one count of grand theft, one count of insurance fraud by false or fraudulent claims and one count of false report of the commission of a crime. The court adjudged Respondent guilty of issuing a false report of the commission of a crime, withheld adjudication of guilt on the remaining counts, placed Respondent on probation for 3 years, and ordered her to pay costs. Respondent filed a timely motion for new trial following rendition of the verdict. At the time of final hearing in this case, no disposition had been made of Respondent's motion for new trial.
