The Issue The issue presented is whether Respondent should deny an application for a real estate broker's license on the grounds that the applicant pled nolo contendere to a crime involving moral turpitude, within the meaning of Subsection 475.25(1)(f), Florida Statutes (2004), was adjudicated guilty of the crime, and has not been rehabilitated.
Findings Of Fact Respondent is the state agency responsible for licensing real estate brokers and sales persons in the State of Florida, pursuant to Chapter 475, Florida Statutes (2003). Respondent has licensed Petitioner as a real estate sales person since July 1, 1996. Petitioner has also been licensed in the state as a mortgage broker since September 1, 1993. On June 25, 2004, Petitioner applied for a license as a real estate broker. On December 1, 2004, Respondent issued a Notice of Denial. The Notice of Denial proposes to deny the license application on specific grounds. The Notice limits the grounds for denial to those included in the following statement: The Florida Real Estate Commission has determined that the Applicant has been adjudicated guilty of crimes relating to the activities of a licensed broker or sales associate, and crimes of moral turpitude or fraudulent or dishonest dealing. Specifically it has found that the applicant . . . has been convicted of or found guilty of, or entered a plea of nolo contendere to: Contributing To The Delinquency of A Minor, 2001 During the hearing, Respondent stipulated that it does not seek denial of the application on the grounds that the alleged crimes relate to the activities of a licensed broker or sales associate or to fraudulent or dishonest dealing. Respondent relies solely on allegations that Petitioner pled nolo contendere to the misdemeanor charge of contributing to the delinquency of a minor; that the crime involved moral turpitude; and that Petitioner was adjudicated guilty and has not been rehabilitated.1 It is undisputed that Petitioner pled nolo contendere in 2001 to a first-degree misdemeanor in the Circuit Court of Charlotte County, Florida, for contributing to the delinquency of a minor. The factual allegations in the criminal proceeding were that Petitioner solicited a 13-year-old female (minor female) to pose topless or nude on August 2, 2001, when Petitioner was approximately 38 years old. It is undisputed that the minor female did not pose for Petitioner. The court adjudicated Petitioner guilty and withheld sentencing. Petitioner paid $353 in costs, served 75 hours of community service, and successfully completed probation of 12 months. The Notice of Denial does not allege that Petitioner actually committed the crime of contributing to the delinquency of a minor. Nor does the applicable statute require proof that Petitioner committed the acts alleged in the criminal proceeding as a prerequisite for denial in this proceeding.2 It is legally unnecessary to determine whether Petitioner is guilty of the crime to which he pled nolo contendere. The entry of the plea, by itself, is a sufficient statutory ground for the proposed denial. The plea does not operate statutorily as conclusive evidence that Petitioner committed the crime to which he pled nolo contendere.3 No finding is made in this proceeding that Petitioner either did or did not solicit the minor female. The court adjudicated Petitioner guilty, and this Recommended Order refers to the solicitation as the adjudicated solicitation. The threshold factual issue in this proceeding is whether the adjudicated solicitation involved moral turpitude. If so, it must be determined whether there is a rational connection between the moral turpitude and Petitioner's fitness to engage in the real estate business. If the requisite connection exists, it must be determined whether Petitioner has been rehabilitated and is not a "danger to the public." The adjudicated solicitation involved an act of moral turpitude. Solicitation of a 13-year-old female to pose topless or nude was a substantial deviation from the standard of conduct acceptable in the community, violated the duties owed to society, and was an inherently base or depraved act.4 The base or depraved nature of the adjudicated solicitation did not arise from a desire for monetary gain, as the motive typically is in other crimes, such as grand theft or the intent to sell controlled substances, that have been held to involve moral turpitude.5 Rather, the base or depraved nature of the adjudicated solicitation arose from an attempt to coerce the involuntary compliance of a minor female by exploiting her vulnerability; exploiting a financial relationship over which Petitioner enjoyed financial control; and exploiting a quasi- familial relationship in which Petitioner was imbued with the advantage of an authority figure.6 A person of common understanding would have known there was a substantial and unjustifiable risk that such conduct would encourage delinquency and that disregard of that risk was a gross deviation from an appropriate standard of conduct. At age 13, the minor female was nowhere near the 18 years of age required for legal majority. That vulnerability was accentuated during the adjudicated solicitation by Petitioner's age of 38. The minor female was also financially dependent on Petitioner for income as the family babysitter. Petitioner enjoyed the advantage of financial control of that relationship and possessed the power to terminate the relationship. Petitioner also enjoyed the benefit of an authority figure in a quasi-familial relationship. The minor female is the daughter of the brother of Petitioner's wife. The minor female is not legally the niece of Petitioner because the brother never married the mother of the minor female. The minor female is also a long-time friend of Petitioner's daughter. There is no direct evidence of actual intent to exploit the vulnerability of the minor female and any existing relationship. However, Petitioner should have known that the minor female was in a position of vulnerability and that the adjudicated solicitation necessarily exploited her vulnerability and the advantages he enjoyed in their relationship. A person of common understanding would have known there was a substantial and unjustifiable risk that the solicitation would tend to cause or encourage delinquency. The risk was of such a nature and degree that Petitioner's adjudicated disregard of that risk was a gross deviation from the appropriate standard of conduct.7 The moral turpitude evidenced by the adjudicated solicitation in 2001 is not rationally connected to the applicant's fitness to engage in the real estate business. Respondent admits that the adjudicated solicitation is not related to the activities of a licensed broker or sales associate and does not involve fraudulent or dishonest dealing. It is undisputed that the adjudicated solicitation did not impugn Petitioner's fitness to engage in the real estate business. From July 1, 1996, through the date of hearing, Petitioner has functioned as a licensed real estate sales person with no harm to the public before or after the adjudicated solicitation. Petitioner disclosed the adjudicated solicitation to Respondent sometime after June 25, 2004. Respondent did not prevent Petitioner from engaging in the real estate business as a sales person. Respondent cited no evidence or authority to support a finding or conclusion that the misdemeanor disqualifies Petitioner from performing the functions of a real estate broker, but does not disqualify Petitioner from performing the duties and responsibilities of a real estate sales person. As a mortgage broker, Petitioner maintains trust accounts and transfers client deposits to third parties, including surveyors and credit reporting agencies. The absence of a rational connection to the applicant's fitness to practice real estate imbues the allegation of moral turpitude with the potential for arbitrary and discriminatory denial of the license application.8 The potential for selective enforcement should be avoided. The issue of whether Petitioner has been rehabilitated is moot in the absence of a rational connection between an act of moral turpitude and the fitness to engage in the real estate business. If it were determined that a rational connection existed between the adjudicated solicitation in 2001 and the fitness of Petitioner to engage in the real estate business, Petitioner has been rehabilitated.9 Petitioner paid the required court costs, served the community service, and completed his probation. Petitioner is a father of three children, has been married for more than 16 years, is a licensed real estate sales person, a licensed mortgage broker, and has not exhibited a pattern or practice of violations before or after the incident on August 2, 2001. Rather, the incident in 2001 stands alone as the only blemish on an otherwise flawless professional record as a real estate agent and a mortgage broker. The issuance of a broker's license to Petitioner does not frustrate legislative intent. The issuance of a license does not expose the public to a dishonest real estate broker that engages in fraudulent practices. The crime for which Petitioner was adjudicated guilty does not impugn the honesty of Petitioner or his ability to deal fairly with the public in the real estate business.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting the license application. DONE AND ENTERED this 25th day of August, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2005. 1/ Transcript at pages 44-45. 2/ The last sentence in Subsection 475.25(1)(f), Florida Statutes (2003), states that the court record of conviction is prima facie evidence of guilt. However, the statutory language preceding the last sentence does not expressly require proof of guilt as a prerequisite for denial. The last sentence appears to be a vestige from former statutory language that required a plea of nolo contendere to be treated as a conviction. The legislature deleted the former statutory language from the current statute, but, so far, has not deleted the remaining vestige of the former statute. The issue is discussed further in the Conclusions of Law. If proof of guilt were a statutory prerequisite for denial, evidence Petitioner submitted to overcome the prima facie showing of guilt or to mitigate the prima facie showing of guilt is neither credible nor persuasive to the trier of fact. The relevant evidence consists of Petitioner's own testimony and hearsay statements that the testimony attributes to the minor female, members of her family, and others. The hearsay did not supplement or explain competent and substantial evidence within the meaning of Subsection 120.57(1)(c), Florida Statutes (2003). 3/ Cf. McNair v. Criminal Justice Standards and Training Commission, 518 So. 2d 390, 391 (Fla. 1st DCA 1987)(plea is not statutorily evaluated as conclusive evidence of the commission of wrongdoing but is, by itself, statutorily sufficient for disciplinary action). This issue is discussed further in the Conclusions of Law. 4/ Neither party cited an applicable statute or rule that defines moral turpitude. Judicial decisions generally hold that moral turpitude involves: . . . the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted) It has also been defined as anything done contrary to justice, honesty, principle, or good morals. . . . State ex rel. Tullidge v. Hollingsworth et al., 108 Fla. 607, 146 So. 660, 611 (Fla. 1933). 5/ Judicial decisions finding moral turpitude in the exploitation of others for monetary gain are discussed in the Conclusions of Law. 6/ Judicial decisions discussing exploitation of vulnerable persons in professional relationships are discussed further in the Conclusions of Law. 7/ Culpable knowledge is an element in the judicial definition of contributing to the delinquency of a minor. State v. Shamrani, 370 So. 2d 1, 2 n.3 (Fla. 1979); Kito v. State, 888 So. 2d 114, 116 (Fla. 4th DCA 2004). 8/ By analogy, the Florida Supreme Court has held that a rational connection to an applicant's fitness to practice law must be applied to the requirement for good moral character or the requirement could become "a dangerous instrument for arbitrary and discriminatory denial of the right to practice law." Florida Board of Bar Examiners Re: G.W.L., 364 So. 2d 454, 458-459 (Fla. 1978). 9/ Counsel for Respondent questioned Petitioner in an unsuccessful attempt to show that Petitioner currently lacks veracity and is therefore dishonest. Counsel stipulated that the grounds for denial do not include dishonesty or fraudulent practices. The attempt to show current dishonesty is relevant only to the issue of rehabilitation. See Transcript at pages 36-51. 10/ The agency action in McNair was mandatory but is discretionary in this proceeding. The substantially affected party in McNair pled nolo contendere to a felony while Petitioner entered a similar plea to a misdemeanor. However, those factual distinctions are not material to the absence in the applicable statute of the former statutory infirmity that spawned the requirement of proof of guilt in Ayala and Son. 11/ Unlike the facts in the instant case, the holding in some of the cited cases are arguably ambiguous in that the allegations recite all of the grounds in the applicable statute, and it is not clear in every case whether the decision is restricted to allegations of moral turpitude. COPIES FURNISHED: Barbara Rockhill Edwards, Esquire Department of Legal Affairs Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 419 West Vine Street Kissimmee, Florida 34741 Guy Sanchez, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether the Respondent committed the violations alleged in the administrative complaint and, if so, what penalty, should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the regulation of real estate licensees in the State of Florida. At all times material to the allegations of this case, the Respondent was a licensed real estate salesman, license number 0646052. On or about July 15, 1996, the Respondent completed an application for licensure as a real estate salesperson that was submitted to the Department. Such application posed several questions to be completed by the Respondent by checking boxes "Yes" or "No." Among such questions was the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." In addition to the foregoing, the question also advised the Respondent as follows: Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult an attorney or the Division of Real Estate. After reviewing the foregoing question, the Respondent submitted the answer "No" on his application for licensure. The Respondent represented at hearing that prior to submitting the application he consulted an attorney. The Respondent's application for licensure also contained an affidavit wherein the Respondent, after being sworn, represented that he had carefully read the application and that all answers to same are true and correct. The answer the Respondent gave to the above-described question was not accurate. In fact, in Case No. 87-2661-CF before the Circuit Court of Alachua County, Florida, the Respondent was charged with grand theft of the amount of $4200.00, a felony. The resolution of such charge came when the Respondent entered a plea of nolo contendere. Thereafter the Respondent was placed on probation for a period of three years and was directed to pay court costs and restitution. The court withheld adjudication and the Respondent successfully completed all conditions of the probation. At the time of the foregoing plea the Respondent was represented by counsel, was apprised of his rights regarding the charge pending against him, had no prior convictions, and was approximately 19 years of age with satisfactory mental health. The record of the Respondent’s plea and the conditions of his probation have not been sealed nor expunged. The Respondent did not deny the factual allegations in the underlying criminal matter. That is, he has not alleged that the charge of grand theft was untrue. He has asserted that he believed the record would not appear on a background check and that, therefore, he unintentionally failed to disclose the criminal record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order revoking Respondent's license. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 15th day of December, 1999. COPIES FURNISHED: Nancy P. Campiglia, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Thomas Payne, Esquire 3780 West Flagler Street Miami, Florida 33134 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent is and, at all times material hereto, was a duly licensed real estate salesperson in the State of Florida. Respondent is now and was at all times material herein actively engaged in major real estate developments and has also operated on behalf of family owned corporations. During the relevant time period, Respondent has not engaged in the general real estate brokerage business. On August 16, 1984, Respondent was found guilty in federal court of one count of knowingly, willfully, and unlawfully participating in the use of extortionate means to collect and attempt to collect an extension of credit in violation of Title 18, United States Code, Section 894. Respondent was sentenced to 18 months in prison and fined $2,000. The incident which gave rise to the conviction occurred in and while the Respondent was a resident of Illinois, and prior to the Respondent's being issued his Florida real estate license. Respondent testified that in 1983 he owned a Chicago nightclub. According to Respondent, during that time period someone owed Respondent a gambling debt in the amount of $36,000. The person who owed the money to Respondent said he would pay the debt. Because the Respondent was leaving town, he asked his wife's uncle to pick up the money. The Respondent indicated, that unknown to him, the uncle used unlawful means in an attempt to collect the funds. It was this collection effort which eventually lead to the Respondent's arrest, not guilty plea, and guilty verdict in 1984. The Respondent moved to Florida and, subsequently, on or about January 19, 1994, he applied to become licensed as a Florida real estate salesperson. The application contained an affidavit which provided in part that "such responses are true and correct, and are as complete as his/her knowledge, information and records permit without any evasions or mental reservations whatsoever." Petitioner's application form contained Question 9 which requested information concerning an applicant's criminal history. In pertinent part the question is as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned. * * * Your answer to this will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In response to this question, Respondent answered in the negative by marking the "no" box. On April 18, 1994, the State of Florida issued Respondent license #0611142 as a real estate salesperson. On January 10, 1994, Respondent signed the application. By his duly notarized signature, the Respondent swore that all answers and information provided on his application were true, correct, and complete. On or about January 16, 1995, Respondent applied to become licensed as a real estate broker in the State of Florida. Respondent, again, checked "no" to Question 9 on his broker's application as to whether or not he had ever been convicted or found guilty of any crime. Also, Respondent again swore that all answers and information contained in his application to become a real estate broker in the State of Florida were true, correct, and complete. Again, the Respondent's signature was duly notarized. The broker's application was approved for the Petitioner. However, a broker's license was not issued because Respondent failed to pass the state examination required to be licensed as a broker. Respondent testified at the formal hearing that the reason he did not disclose his prior conviction on his real estate applications was that he had spoken to his brother who advised him that matters over 10 years old did not have to be disclosed. Respondent did not consult with an attorney, the Division of Real Estate or anyone else other than his brother about how to answer Question 9 on his real estate application. Respondent's stated justification for checking "no" on his license applications lacked credibility given the clear wording of Question 9 on the application form. The Respondent has had no other incidents of criminal problems. Similarly, there have been no civil judgments involving the Respondent and dishonest dealing. Finally, there have been no prior disciplinary matters against the Respondent. The Respondent has served in the military and was honorably discharged and earned a two-year degree in electronics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 * day of February, 1998. *Filed with the Clerk undated. -ac COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 July 21, 1999 Henry M. Solares, Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis DOAH Case No. 97-3722 Dear Mr. Solares: Enclosed is the Amended Recommended Order issued in the referenced case. It was issued in order to correct a scrivenners error in page 8 of the original order. Please replace page 1 and page 8 enclosing for pages 1 and 8 oriignally sent to you. Please accept my apologies for any inconvenience this might have caused. Sincerely, CSH/scl Enclosures cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire CAROLYN S. HOLIFIELD Administrative Law Judge
Recommendation The Hearing Officer, based upon the foregoing Findings of Fact and Conclusions of Law, recommends that the Real Estate Commission accept the application of Harry A. Yeargin. DONE and ORDERED this 16th day of September, 1976 in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Randy James Schwartz, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 W. O. Birchfield, Esquire 3000 Independent Square Jacksonville, Florida 32202
Findings Of Fact Arthur Steinhardt, on September 27, 1972; July 5, 1973; and November 17, 1975 applied to take the examination given to applicants for registration as real estate salesman by the FREC. All of these applications were denied on grounds that applicant had failed to give complete answers to questions on the application and had failed to show that he met the statutory qualifications of honesty, truthfulness, trustworthiness and good character. At the instant proceeding the FREC's attorney stipulated that the giving of incomplete answers on the application was no longer an issue and that the FREC had been fully apprised of the applicant's past record of conviction. Applicant, who is presently 59 years old, was convicted in 1969 of grand larceny and uttering a forgery, and sentenced to prison for a term of six months to three years. He was released after serving nineteen months and applied for a pardon on May 19, 1971. On June 15, 1972 he was granted a pardon and his civil rights were restored. Since his release from prison he has worked as office manager for his sister who is a licensed mortgage broker and real estate broker. Applicant filed for bankruptcy and was discharged by the referee in bankruptcy in 1973. For the past six years he has had no further brushes with the law. The conviction for which applicant was imprisoned involved a family dispute and the ownership of family assets is presently in litigation with applicant and his sister attempting to recover estate assets from a brother. One witness, a member of the Florida Bar, testified to the good character and business reputation of the Applicant. One affidavit of good character has been received as late-filed Exhibit 2.
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 Whether the Respondent's Florida real estate license should be disciplined based upon the charge that the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility to Administrative Complaints pursuant to the laws of he State of Florida, in particular, Section 20.30, Florida Statues, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. Respondent Doris Duke is now and was at all material hereto a licensed real estate salesman in the State of Florida having been issued license number 0441054 in accordance with Chapter 475, Florida Statutes. On June 13, 1989, the Respondent solicited and obtained a listing for the sale of an adult care center from seller Shirley Holland. The listing price was $300,000. (Petitioner's Exhibit 1). The property had been on the market for sometime and seller was anxious to sell. S. L. Patterson and Anne M. Reese had been interested for sometime. On January 19, 1990, the Respondent solicited and obtained an offer to purchase the adult care center from S. L. Patterson and Anne M. Reese, buyers, in the amount of $225.000. The contract was contingent upon financing. The Respondent presented the offer to the seller on or about January 20, 1990. Seller would have received approximately $25,000 and a second mortgage for $65,000. (Petitioner's Exhibit 2). Subsequently the buyers were unable to obtain financing, and the contract was void at this point. In an effort to consummate the sale, Respondent arranged financing for the buyers. The terms of this transaction as reflect in the closing documents, FREC 4, showed a sales price of $125,00, with a first mortgage of $100,000, a second mortgage of $46,250 and a third mortgage to seller of $84,500. However, this financing required an added $25,000 which came from the $25,000 originally to the seller. The Respondent advised the seller of the changes the day before the closing; however, the changes to the contract were not reflected in writing either in the contract or in an addendum. Instead the changes were reflected in the closing documents (FREC 4). Instead of receiving about $2,000 the seller had to pay $68.08 at closing. The Respondent and Respondent's employer Century 21 Harris Real Estate & Associates, Inc. profited in the amount of a $22,500 commission, an amount which they earned under the listing contract. Subsequently, the purchasers, who were black and operated an adult congregate living facility, were the targets of racially motivated vandalism and hate crimes. As result they were unable to make a financial success on the venture. The buyers defaulted on their mortgage payments, and foreclosure was initiated by one of the principal mortgagees.
Recommendation RECOMMENDED that charges against the Respondent be dismissed. DONE AND ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of October, 1991. APPENDIX CASE NO. 91-4554 The Petitioner's Proposed Recommended Order was read and considered. The following is a list of the findings which were adopted and which were rejected and why. Paragraphs 1, 2, 4, 5, 7, 8, 9, 10, 11, 12 and 13 were adopted. Paragraph 3 was rejected as irrelevant. Paragraph 6 was rejected as irrelevant and contrary to the best and most credible evidence. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Doris Duke 6676 Cedar Point Road Jacksonville, Florida 32226 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Kenneth Baurley should be eligible to sit for the examination to become licensed as a real estate salesman.
Findings Of Fact On July 14, 1988, Mr. Baurley's application for licensure as a real estate salesman was received by the Florida Real Estate Commission (Commission). By letter dated October 3, 1988, the Commission notified Baurley that his application had been denied based on his answer to question 6 on the application. In responding to that question, Mr. Baurley disclosed that he had been involved in two criminal proceedings; in both an adjudication of his guilt had been withheld. The first case arose in 1982 on the charge of battery on a law enforcement officer, for which he received 18 months of supervised probation. The incident had its genesis in a shoving match involving Baurley and someone who turned out to be an off-duty police officer for a small municipality. The second was in 1983 for the municipal offense of prowling. Although under no obligation to do so, Mr. Baurley also stated that he had been arrested for driving under the influence in 1988. He was found not guilty on the last charge, so it has no bearing on the decision in this case. Mr. Baurley's response to question 6 was complete and truthful. At the time of these incidents, Mr. Baurley was 19 and 20 years of age. He successfully completed his probation. He has had no further relevant contacts with the criminal justice system for more than five years. Mr. Baurley is now 26 years old. He has resided in Pompano Beach, Florida since 1972, although he attended college in Tallahassee. He is employed currently as President of A Better Limousine Service, Inc. and as a supervisor at Baurley Marine Works, Inc., which is owned by his father. Prior to his employment in these two positions, Mr. Baurley worked in a business established by his brother, Baurley "No Frills" Auto Rental. Before he held these positions, Mr. Baurley attended college in Tallahassee and worked at Doc's Sports Bar and Grill and at Forest Meadows Athletic Club. He was also an adjunct instructor at Florida State University where he taught Tae Ywon Do for college credit. In the course of his employment in the positions set out in Findings 6 and 7 above, Mr. Baurley has been required to interact with patrons, sometimes under difficult circumstances. In all the positions delineated in Findings 6 and 7 (other than the position as adjunct instructor at Florida State University) Mr. Baurley has been required to handle other people's money on at least a weekly basis. Most of the positions have required him to deal with his employers' or customers' money on a daily basis. Petitioner has performed all his employment responsibilities honestly and without incident. Darlene Vlazeny, a real estate salesperson and housewife, met Mr. Baurley in a business capacity by telephone in October, 1988. At that time Mrs. Vlazeny was soliciting in-kind contributions on behalf of a school for hearing impaired children. Mrs. Vlazeny testified that Mr. Baurley's was the only limousine company which agreed to her request to provide limousine services in connection with a benefit for the school at reduced rates. Since the school benefit, Mrs. Valzeny has had social contact with Mr. Baurley. She is aware of the incidents detailed in his answer to question number 6 on his licensure application, but believes he is trustworthy, honest and has a high moral character based on her experiences with Baurley. Mrs. Vlazeny would have no reservation about working with Mr. Baurley in any professional capacity. John Belegesky, a practicing attorney for more than 30 years, has known Mr. Baurley since he was a small boy. Baurley and Mr. Belegesky's son have been friends since grade school. Mr. Belegesky is also aware of Mr. Baurley's past and believes that the acts disclosed in the response to question number 6 to be out of character for him, and the result of youthful indiscretion. Mr. Belegesky trusts Petitioner to have a key to his home, which contains many valuables, and to houseset when he and his wife are away for weeks at a time. Mr. Belegesky would have no reservation about referring his clients, including major developers, to work with Mr. Baurley, if he is licensed. Mr. Belegesky believes Mr. Baurley possesses a high moral character and is honest and trustworthy. Mr. Baurley has matured and regrets his past actions. Mr. Baurley is honest and trustworthy and is of good moral character.
Recommendation Based on the foregoing, it is RECOMMENDED that the Petitioner, Kenneth M. Baurley, be allowed to take the examination for licensure as a real estate salesman and if he passes the examination, be issued a real estate salesman license. DONE and ORDERED this 28th day of April, 1989, in Tallahassee, Florida. WILLIAM R. DORSEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5537 The proposed findings of Mr. Baurley have generally been adopted. COPIES FURNISHED: Lawrence S. Gendzier, Esquire Department of Legal Affairs 400 West Robinson Street, Room 212 Orlando, Florida 32802 Marion E. Baurley, Esquire 1025 Vermont Avenue, North West Suite 915 Washington, D.C. 20005 Kenneth E. Easley General Counsel 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32902
Findings Of Fact Petitioner is a licensed barber in the State of New York where he has 30 years experience in men's hair styling. He also maintains a residence in Pompano Beach, Florida. Petitioner was convicted of attempted grand larceny, third degree, in the State of New York in 1978. The offense involved assisting his employee in attempting to defraud an insurance company. Petitioner was fined $350 for committing this offense, which is a Class A misdemeanor. He was issued a Certificate of Relief from Disabilities by the State of New York on September 25, 1978. A licensed Florida real estate broker and a building contractor testified on behalf of Petitioner. The broker has known Petitioner for over five years and trusts him sufficiently to employ him in her realty business if he is granted a real estate salesman's license. The building contractor has known Petitioner for nine years and has found him to be honest and reliable. Petitioner also introduced twelve letters of recommendation submitted by business and professional persons. These individuals have known Petitioner for substantial periods, and uniformly conclude that he is honest and trustworthy. They base their conclusions on extensive personal contact with Petitioner, as well as their knowledge of his general reputation.
Recommendation From the foregoing, it is RECOMMENDED that the application of Anthony A. Deriggi for registration as a real estate salesman be DENIED. DONE and ORDERED this 3rd day of November, 1980, in Tallahassee, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue Has Mr. Juliano demonstrated that he is honest, truthful, trustworthy, and of good character and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (1981)?
Findings Of Fact On February 12, 1981, Mr. Juliano filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated April 28, 1981, the Board denied Mr. Juliano's application. As stated by the letter, "the specific reasons for the Board's action is based on your answer to Question #6 of the licensing application and your criminal record according to the appropriate law enforcement agency." Question #6 of the application asks: 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Mr. Juliano responded "Yes" he had. The question further requested the details in full concerning any arrests. In response Mr. Juliano answered: Arrested for possession of canibus, [sic] pleaded guilty, placed on probation for 30 months. I am not on probation now. On May 31, 1977, the Circuit Court in and for Seminole County, Florida, in Case No. 77-171-CFA, State of Florida v. Frank Arthur Juliano, entered judgment whereby Mr. Juliano who entered a plea of guilty to possession of controlled substances was placed on probation for a period of 30 months with adjudication of guilt withheld. Mr. Juliano successfully completed the terms of his probation which expired on November 30, 1979. There was some confusion about the nature of the judgment entered by the Seminole County Circuit Court referenced above. Upon the receipt of Mr. Juliano's application for licensure the Board staff, as it customarily does, wrote a letter to him dated March 4, 1981 in which it requested additional information about the arrest mentioned in his answer to Question #6 on the application. In response to that inquiry Mr. Juliano obtained and sent to the Board a report from the Florida Department of Law Enforcement which indicates that Mr. Juliano was arrested on March 7, 1977 for the sale and delivery of controlled drugs. The report further indicates that adjudication was withheld and he was placed on probation for 30 months. A cursory reading of the report might cause the reader to believe that judgment was entered on a charge of sale and delivery. Such a reading would not be correct. Mr. Juliano did not enter a plea to the sale and delivery of controlled substances, but pled only to the charge of possession of controlled substances, a less serious crime. This fact is reflected in the actual Order of Judgment entered by the Seminole County Circuit Court. Since his arrest and probation on the possession charge Mr. Juliano has not been arrested for or charged with any other criminal acts. He has subsequently led a law-abiding life and conducted himself in an honest and trustworthy manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Real Estate enter a Final Order finding Petitioner qualified pursuant to Section 475.17(1), Florida Statutes (1981) to take the licensing examination provided for in Section 475.17(5), Florida Statutes (1981), to be licensed as a real estate salesperson in the State of Florida. DONE and ORDERED this 26th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1982.
