The Issue The issue in the case is whether the Petitioner should be permitted to take the examination for licensure as a real estate sales associate.
Findings Of Fact In September 2003, the Petitioner filed an application for licensure by the State of Florida as a real estate sales associate. In an application section titled "Background Information" question 1 asks in relevant part, "[h]ave you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere . . ." to which the Petitioner responded in the affirmative. "Background Information" question 4 in relevant part asks, "[h]as any license, registration, or permit to practice any regulated profession, occupation, vocation, or business been revoked, annulled, suspended, relinquished, surrendered, or withdrawn . . ." to which the Respondent replied in the affirmative. Question 1 directs an applicant who responds in the affirmative to disclose the full details of the incident(s) by completion of "form 0050-1." Question 4 directs an applicant who responds in the affirmative to disclose the full details of the termination(s) by completion of "form 0060-1." The disclosure forms completed by the Petitioner (if any) are not in the Respondent's files and are unavailable for review. The Petitioner's application package was presented to the Commission on December 16, 2003. After considering his presentation, the Commission denied his application and instructed him to return with additional information related to the disclosed charges. The Petitioner apparently sought reconsideration, and his application package was again presented to the Commission on March 17, 2004. After reconsidering the Petitioner's background, the Commission again denied his application. The Petitioner then sought an administrative hearing to challenge the denial of his application. On or about July 26, 2000, the Petitioner was arrested and charged with stalking. The Commission's records indicate that the Petitioner completed a pretrial program and was sentenced to 50 hours of community service. At the administrative hearing, the Petitioner testified that he was placed on probation for six months, and had to complete a six- month psychological evaluation. The stalking charge was nolle prossed. At the hearing, the Petitioner stated that at the time of the stalking charge, he was working at a retail establishment. The object of his attention was a 16-year-old female who was working in the vicinity. The Petitioner was approximately 36 years old. The Petitioner asserted that he did not know the female was 16 years old at the time. He denied that he "stalked" the female, but stated that he merely spoke to her a few times in person and attempted to contact her once by telephone. He continued to express surprise at the stalking charge. On or about June 6, 2001, the Petitioner was arrested and charged with burglary of an unoccupied conveyance, a felony, and criminal mischief. He was sentenced to two years of probation, six months of psychological evaluation, and was required to pay court costs. Adjudication of guilt was withheld. At the hearing, the Petitioner stated that he went to the home of an ex-girlfriend to collect a $500 debt she allegedly owed to him. He testified that he knocked on her door and got no response. As he left her residence, he saw that her automobile was unlocked. He opened the hood of the ex- girlfriend's vehicle and ripped out the spark plug cables. He asserted that he "didn't steal anything" because he threw the cables away and didn't keep them. On or about September 5, 2001, the Department of State, Division of Licensing, entered an order based on the Petitioner's stipulation, revoking his Class "D" Security Officer's License, based on the burglary charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 17th day of August, 2004, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 17th day of August, 2004. COPIES FURNISHED: Alfonso Santana, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Fernando Freire 5242 Millenia Boulevard, No. 304 Orlando, Florida 32839 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802 North Orlando, Florida 32808-1900
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue By Administrative Complaint dated February 20, 1991 and filed with the Division of Administrative Hearings on April 23, 1991, the Department of Professional Regulation, Division of Real Estate, alleged that Respondent had obtained a real estate license by means of fraud in that Respondent had a prior criminal charge and 1976 conviction in New Jersey and had not disclosed same in his July 30, 1990 application for licensure as a real estate salesman, contrary to and in violation of Subsection 475.25(1)(m) F.S.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints against real estate licensees pursuant to the laws of the state of Florida, in particular Section 20.30 F.S. and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate broker in the state of Florida, having been issued license number 0566757 in accordance with Chapter 475, F.S. The last license issued was as a nonactive salesman, in care of 380 Mercers Fernery Road, DeLand, Florida 32720. On his July 30, 1990 application, Respondent made a sworn application for licensure as a real estate salesman with the Petitioner. Question No. 7 of the July 30 application read, in pertinent part, as follows: 7. 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? Under oath, Respondent answered "no" to the foregoing Question No. 7. Thereafter, Petitioner based this instant prosecution on a series of loose pages which purported to be a report from the U.S. Department of Justice, Federal Bureau of Investigation (Petitioner's Exhibit B). This item is not a business record of the Petitioner, and Petitioner has shown no reason this printed hearsay should be admitted and considered. Consequently, it has not been admitted or considered. Respondent was interviewed by Petitioner's investigator. The investigator, Mr. Miller, testified concerning his interview of Respondent, but nothing in their conversation constituted an "admission of a party opponent." Nor was anything said in that conversation sufficient to supplement or explain any other testimony or exhibit. See, Section 120.58(1) F.S. Likewise, the conversation did not even support the allegations of the Administrative Complaint. Respondent's testimony at formal hearing was disjointed and inconclusive but to the general effect that at some time he had been arrested in New Jersey in connection with a burglary of his dwelling and a subsequent police search thereof which produced a cache of marijuana. He denied telling a deliberate lie on his real estate application and stated he simply could not recall anything further about the New Jersey incident which he described.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter a Final Order dismissing with prejudice the Administrative Complaint. DONE and ENTERED this 27th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 27th day of June, 1990.
The Issue Whether Respondent obtained his registration as a real estate salesman by means of fraud, misrepresentation, or concealment. On October 14, 1976, Petitioner's Administrative Complaint was sent by registered mail to the Respondent at his designated address: Post Office Box 805, U.S. Highway 52 West, Dade City, Florida 33525. A return receipt signed by the Respondent showed date of delivery as October 26, 1976. (Exhibit 1) However, Respondent did not execute and return an enclosed Election of Rights form that accompanied the Administrative Complaint wherein he could have indicated his desires as to an administrative hearing. Nevertheless, Petitioner requested that a Hearing Officer be appointed in the matter and issued a Notice of Hearing to Respondent at the same address by certified mail on January 19, 1977. This correspondence was returned by postal authorities as "Unclaimed" (Exhibit 2). An Order of the Hearing Officer changing the hour set for the hearing from 10:00 a.m. to 2:00 p.m. on February 15, 1977 was mailed to the Respondent on February 7, 1977. However, neither Mr. Bryant nor any representative in his behalf appeared at the hearing on February 15, 1977. It being determined that proper notice had been provided to the Respondent in accordance with Section 475.40 and Chapter 120, Florida Statutes, the Petitioner presented its evidence in uncontested proceedings.
Findings Of Fact Respondent filed his application for registration as a real estate salesman with Petitioner on October 10, 1972. He completed Question 9 therein in the following manner: "9. 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, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted? Yes If yes, state details in full. Yes - See back of sheet" On the back of the application page, Respondent listed the following: "Have 2 traffic tickets, Pasco County, Dade City, Fla. - County Court Improper Passing Out of Date inspection sticker" Respondent was issued his registration as a salesman by Petitioner, effective January 29, 1973, Certificate Number 20527. The certificate was renumbered 0010908 when reissued in 1974 and 1975. It was issued again as "Non Active Salesman" on April 19, 1976 with expiration date March 31, 1978. (Composite Exhibit 3) Records of the Sheriff, Pasco County, show that the Respondent was arrested on six different occasions during the years 1961 to 1970. Five of these arrests were based on worthless check charges and one arrest was for failure to appear, as set forth in the Administrative Complaint of Petitioner. (Exhibit 4, Administrative Complaint) Respondent was charged on October 23, 1970 on an information of the State Attorney for the Sixth Judicial Circuit of Florida in and for Pasco County, Case Number 2010, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. He was also charged on October 23, 1970 in the same Judicial Circuit, Case Number 2011, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. (Exhibit 5)
Recommendation That the registration of Respondent Joseph M. Bryant as a non-active real estate salesman be revoked, pursuant to subsection 475.25(2), Florida Statutes. DONE and ENTERED this 24th day of February, 1977 in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32389 Mr. Joseph M. Bryant Post Office Box 805 U.S. Highway 52 West Dade City, Florida 33525
The Issue The issue is whether Respondent attempted to obtain his license to practice medicine by fraudulent representations, in violation of Section 458.331(1)(a), Florida Statutes, or if Respondent misrepresented or concealed a material fact during any phase of a licensing or disciplinary process, in violation of Section 458.331(1)(gg), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.
Findings Of Fact By application dated and acknowledged on December 27, 1993, Respondent applied for a medical license by endorsement. Respondent filed the application with the Board of Medicine on January 12, 1994. Question 6 on the application asks: Have you ever been convicted of a felony? Yes No ; a misdemeanor? Yes No . Have any judgments ever been entered against you? Yes No . Have you ever been sued for malpractice? Yes No . In response, Respondent typed X’s in the “No” boxes for the first two questions in Question 6. Immediately above the signature of Respondent and acknowledgement of the notary public, on the last page of the application, is the statement: I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me are true and correct. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice medicine/surgery in the State of Florida. In fact, on October 24, 1988, Respondent was found guilty, after a three-day jury trial, of 12 misdemeanor counts of failure to remit a total of over $47,000 in state sales taxes due from November 20, 1985, through December 20, 1986. On December 22, 1988, the court sentenced Respondent to pay a fine of $12,000 on all 12 counts and reasonable court costs, and serve six months’ probation on each of the 12 counts, with the periods of probation to run consecutively. Respondent’s explanation for the omission from the application is that he mistakenly believed that the only misdemeanors covered by the question were those involving the practice of medicine. Respondent’s explanation for the nondisclosure is unreasonable. Nothing in the language of Question 6 limits the scope of the inquiry to misdemeanors involving the practice of medicine. The preceding question in Question 6 asks about felonies without qualification or limitation, and it is absurd to interpret this question as not asking about any felony, such as bank robbery, even though the felony did not involve the practice of medicine. For the same reason, Respondent knew that he was to have disclosed any misdemeanor, even if it did not involve the practice of medicine. Respondent’s explanation for the commission of the crimes is more plausible. Briefly, Respondent testified that he had invested about $100,000 of the total of $250,000 in the acquisition of the Philadelphia franchise of long-distance telephone provider that had emerged immediately following the breakup of AT&T in the mid 1980s. Essentially reselling AT&T long-distance services, the new company paid AT&T at wholesale for the services that it marked up and sold at retail to end users. Respondent explained that he had been an absentee owner for much of the time. Also, the AT&T billing for this new arrangement was confused and irregular. Changes in ownership preceding and following Respondent’s investment in the company further complicated the situation. A Pennsylvania revenue auditor contacted Respondent over a year after he had sold his stock in the company in 1986, gotten married, and been traveling extensively out of state. At this time, Respondent learned of the company’s sales tax problems, which involved a complicated telecommunications excise tax. Respondent’s corporate purchaser was no longer operating the company, which had become bankrupt. Respondent paid the taxes due, but the Commonwealth of Pennsylvania nevertheless prosecuted him for his role in the failure of the company to pay its taxes. After sentencing, Respondent paid the fine and served his probation without incident. He disclosed the misdemeanor convictions to the Pennsylvania agency regulating the practice of medicine and was able to continue practicing medicine there. After consideration of Respondent’s application, the Florida Board of Medicine issued Respondent license number ME 0066606.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 2000. COPIES FURNISHED: Tanya Willaims, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Bin C03 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Kim M. Kluck Carol Gregg Senior Attorneys Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher Grillo 1 East Broward Boulevard, Suite 700 Fort Lauderdale, Florida 33301
Findings Of Fact Petitioner's application for licensure as a real estate salesman reveals that he was born in Miami, Florida, in 1960. In 1979 Petitioner asked a friend to take him to a department store so he could do some shopping. While Petitioner was inside the store shopping, his friend was stealing hub caps in the parking lot until he was caught by the police who arrested both Petitioner and his friend. Petitioner was charged with grand larceny from a building and possession of a barbiturate (methaqualone), but the charges were dropped. In 1981 Petitioner borrowed a car from an acquaintance in order to go out on a date. While Petitioner was driving the car, he was stopped for a traffic violation at which time it was discovered that the borrowed car was a rental car which had been stolen. Although Petitioner was arrested for vehicular theft of an automobile, that charge was dismissed. In 1984 while Petitioner was attempting to locate the home of a friend, he stopped at a house which turned out to. be on the wrong street. As he was returning from the front door of the house to his car, he was stopped by the police. Since the home was located in a neighborhood subject to burglaries and Petitioner did not live in that neighborhood, he was arrested and charged with trespassing and with loitering and prowling. Pursuant to the advice of his public defender, Petitioner plead to one of those charges adjudication was withheld on that charge and the other charge was dropped. Petitioner was not placed on probation and no fine was imposed on him although he believes that he paid court costs. Petitioner disclosed all of the above-described arrests to Respondent in his application for licensure although the application seeks information regarding convictions and not arrests where no conviction or adjudication ever occurs. For the past five years Petitioner has been employed by United Cerebral Palsy. His duties include vehicle maintenance, building maintenance, and lawn maintenance for two group homes. He receives weekly advances from his employer for purchasing supplies. Petitioner has been married for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered approving Petitioner's application for licensure as a real estate salesman, subject to the successful completion of any required examination. DONE and RECOMMENDED this 19th day of November, 1985, at Tallahassee, Florida. LINDA M. RIGOT, 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 19th day of November, 1985. COPIES FURNISHED: Bernard Stefon Gonzalez Post Office Box 610104 North Miami, FL 33261 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street Orlando, FL 32801 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, FL 32801| Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301
Findings Of Fact Petitioner was a member of the United State Army stationed in Korea from the Fall, 1983 until early 1984, having achieved the rank of E-5. In December, 1983 Petitioner overpurchased certain rationed items. Specifically, he purchased three months of rationed items, having accumulated allocations from prior months, although he was only authorized to utilize the ration allocation for the current month. Petitioner testified he did not know, and was not told, that unused allocations for rationed items could not be accumulated and utilized later. Petitioner plead guilty to the misdemeanor charge resulting from this overpurchase. He spent two months in confinement, was reduced in grade from E-5 to E-1, and forfeited $150 in pay for four months. As a result of his loss in grade, Petitioner understood that his pay would be reduced to that of E-1. However, upon receipt of his pay following his reduction in grade, he realized his pay had only been reduced the $150 per month he was to forfeit for four months, but had not been reduced to that of E-1. He allowed another month to go by, and when the adjustment still was not made he reported this to his commanding officer. Shortly thereafter, Petitioner was reassigned to duty within the United States, and he testified he reported the continued overpayment to his new commanding officer. A total of eight months elapsed after he was reduced in grade when he continued to receive E-5 pay. Thereafter, Petitioner was charged in December, 1984 with the misappropriation of government funds, a felony, and on February 26, 1985 he plead guilty to this charge. He was confined for six months, without pay, and given a misconduct discharge. On or about May 29, 1986 Petitioner applied for licensure as a real estate salesman in the State of Florida, and in response to Question 6 he fully disclosed his guilty pleas to the two offenses described above, the sentences imposed, and the fact that he had received a misconduct discharge. On or about September 11, 1986 Petitioner was notified on behalf of Respondent that his application for licensure would be denied based upon his answer to Question 6 and the offenses noted therein. Petitioner timely requested a hearing. Petitioner honestly disclosed his prior offenses occurring in 1983 and 1984 on his application for licensure. He offered the testimony of Andrew Carl Atkison, a friend and former business associate, in mitigation and to establish his honesty since his misconduct discharge.
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.
The Issue Whether the Respondent committed the offenses alleged in the Administrative Complaint issued August 25, 2000, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating insurance licenses and appointments pursuant to Chapter 626, Florida Statutes. At all times material to the allegations in this case, the Respondent has been licensed as a Life Health and Annuity Agent, Life Health and Variable Annuity Agent, and a Health Insurance Agent in this state. On March 7, 1982, the Respondent was celebrating her birthday, she turned 22 that day, and was returning home with her husband when the vehicle they were in was stopped for a minor traffic infraction (expired tag). Believing he had to perform a "pat down" for his safety, the officer felt the Respondent's purse and noticed a bulge in the shape of a small weapon. The small hand gun had been a birthday present to the Respondent. Upon discovering the weapon, the officer charged the Respondent with carrying a concealed firearm. Initially the Respondent entered a written plea of not guilty but subsequently changed the plea in open court to one of nolo contendere. In connection with the plea change, the court entered an Order Granting Probation and Fixing Terms Thereof. The fact that the Respondent was placed on probation is not disputed. Further, as the Court determined the Respondent was not likely to again engage in a criminal course of conduct, adjudication was withheld and probation set for a period of one year. The Respondent successfully completed that year of probation and has had no further incidents of criminal misconduct. The Respondent erroneously believed that the successful completion of the probationary period, and the fact that adjudication had been withheld, resulted in the expungement of the criminal record. As the Respondent later found out, criminal records are not automatically sealed or expunged. On November 2, 1999, the Respondent filed an application for licensure as a life health and variable annuity agent with the Petitioner. That application contained two questions dealing with the applicant's past criminal history. As to both questions, the Respondent erroneously entered "no" responses. Had the Respondent entered accurate answers, both responses would have been "yes" based upon the status of the Respondent's criminal record at the time the application was submitted to the Petitioner. The Respondent has a medical condition that she claims has damaged her long term-memory. According to the Respondent, she answered the questions as she did because she did not remember all the facts surrounding the criminal history at the time the application was completed but that, even if she had, she would have assumed the matter was sealed and fully resolved since adjudication was withheld. The Respondent's account in this regard has been deemed credible. The Respondent did not intend to mislead the Petitioner and acted more in ignorance of the law as to the prior arrest and probation than in willful disregard of her responsibility to disclose it. At the time Respondent completed her application for licensure she read the paragraph that appears at the bottom of the third page of said application in bold typeface that states: IT IS IMPORTANT THAT YOU HAVE READ ALL OF THE FOREGOING QUESTIONS CAREFULLY AND HAVE ANSWERED THEM FULLY. THIS IS ESPECIALLY IMPORTANT AS IT RELATES TO AN APPLICANT'S LAW ENFORCEMENT RECORDS. THE DEPARTMENT DEEMS ALL MATTERS THAT ARE PART OF AN APPLICANT'S LAW ENFORCEMENT RECORDS TO BE A SIGNIFICANT AND MATERIAL ELEMENT OF THE APPLICATION, THE OMISSION OF ANY PART OF THE LAW ENFORCEMENT RECORD IS A MATERIAL MISREPRESENTATION OR MATERIAL MISSTATEMENT IN AND OF ITSELF. YOUR FAILURE TO DIVULGE YOUR COMPLETE LAW ENFORCEMENT RECORD ON THIS APPLICATION CAN RESULT IN YOUR APPLICATION BEING DENIED. In addition to the foregoing, the application submitted by the Respondent provided the following statement: Under penalty of perjury, I declare that I have read the foregoing application for license and the facts stated in it are true. I understand that misrepresentation of any fact required to be disclosed through this application is a violation of The Florida Insurance and Administrative Codes and may result in the denial of my application and/or the revocation of my insurance license(s). The answers provided by the Respondent to the two questions (application questions numbered 18 and 19) were incorrect, misleading, and were presumably used to support the issuance of the Respondent's licenses. Although the Respondent is eligible to have her criminal record sealed or expunged, as of the date of the hearing she had not completed that process. During the investigation of this matter, the Respondent fully cooperated with the Petitioner and obtained copies of documents as requested.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Insurance impose an administrative fine against the Respondent in an amount sufficient to cover the costs of prosecuting this case. DONE AND ENTERED this 1st day of May, 2001, 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 1st day of May, 2001. COPIES FURNISHED: Richard J. Santurri, Esquire Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Joseph H. Fernandez, Esquire The Law Offices of Brand & Fernandez, P.A. 2 Northeast 40th Street Suite 403 Miami, Florida 33137 Honorable Tom Gallagher State Treasurer/Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
The Issue The issue in this case is whether Petitioner's real estate broker's license application should be approved or denied.
Findings Of Fact Petitioner, Rhonda S. Dietz, is a 36-year-old woman who currently holds a real estate sales associate's license. She was first licensed by the State of Florida in December 2001 and has held her license in good standing since that time. At the time Petitioner obtained her sales associate license, she disclosed in her application that she had a criminal background. That background included two grand larcenies, possession of a controlled substance, failure to appear, violation of probation, and obtaining property with a worthless check. Each of the offenses will be further discussed below. Despite the criminal history, Respondent approved Petitioner's sales associate's license, and Petitioner has been selling real estate for the past six years. In 2006, Petitioner first applied for a real estate broker's license. Petitioner maintains that in her 2006 application, she disclosed each of the aforementioned events in her criminal history.1 Nonetheless, her application was denied. In May 2007, Petitioner again filed an application for a real estate broker's license. That application clearly contained documentary evidence of her entire criminal history. The events in that history are hereby discussed: The first grand larceny in Petitioner's background was related to the purchase of goods from a K-Mart in 1994 with a bad check belonging to a roommate. Upon discovering the check was bad, Petitioner immediately turned herself in, made restitution, and paid court costs. She was sentenced to five years' probation for that charge. The second grand larceny involved allegations in 1994 by Petitioner's then-current roommates that Petitioner stole property from them when she moved out of the residence. Although Petitioner denied the charge because the claim was merely retaliation by her roommates for moving out, she agreed to a plea bargain at the advice of counsel. Again, she was given five years' probation and made to pay restitution. In 1998, Petitioner was charged with possession of a controlled substance: a vial of testosterone and some pain pills. She explained that these drugs came from a pharmacy where she was working. The pharmacy specialized in treatment of AIDS patients. She had the drugs in her possession so she could turn them over to a medical group that could disperse them to AIDS patients. The pharmacy supported Petitioner and paid for her defense against the possession charge. Petitioner was sentenced to 24 months' probation, court costs, and 50 hours of community service for that charge. Petitioner also had a probation violation in 1998 for failing to appear and for failing to pay a fine related to one of the aforementioned charges. She did not pay the fine due to lack of funds. She failed to appear due to lack of notice. She was placed on ten months' house arrest for the violation of probation. Petitioner met all other conditions of her probation and has not had any criminal activity since the charges listed above. She does not deny the existence of her prior criminal history and has not attempted to hide it from Respondent. When Petitioner applied for a broker's license in 2005, she filed an application that included her criminal history. The application disclosed all of the charges addressed above. Respondent confirmed the charges by referring to a Florida Department of Law Enforcement (FDLE) report. When Petitioner re-applied in 2007, she personally obtained a FDLE report on her criminal background, which she submitted along with her application. Again, she listed all of her prior history in the application. There is no competent evidence to suggest otherwise. Since the time of her last criminal charge, Petitioner has been gainfully employed. She has worked in an office doing medical billing, in a pharmacy, and as a real estate agent. In her current position, she has been entrusted with large sums of money for clients. She has had no adverse employment actions taken against her. Her co-workers state that she has good moral character and is trustworthy. Petitioner has passed the classroom work needed to become a broker; her application for licensure will complete that process. Meanwhile, she continues to sell real estate and is involved in an investor monitoring program. The broker's license will simply allow Petitioner to make a career move by expanding her capabilities in the area of real estate sales. Respondent did not call any witnesses at the final hearing and did not refute or rebut the facts as stated by Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Real Estate Commission granting Petitioner's application for a real estate broker's license. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 17th day of October, 2007.
