Findings Of Fact Paul Pacino came to the United States from Ecuador in 1967, and was naturalized and changed his name from Telmo Arboleda in April 1973. He is 28 years of age, married with two children and has lived with his parents since coming to this country. He has been employed as a clerk with the U.S. Public Health Service since July 1980. The Petitioner has been arrested for various crimes on nine dates from May 1973 to December 1978 as follows: 5/30/73 Robbery 11/7/73 Possession of stolen vehicle and buying stolen property 4/8/74 Conspiring to commit grand larceny 2/6/75 Two cases of conspiring to commit a felony 2/9/76 Possession of marijuana 2/19/76 Forgery, uttering forged instrument, attempt to commit felony, obstructing a police officer and receiving stolen property 7/21/78 Petit theft 11/1/78 Petit theft 12/22/78 Possession of controlled substance His only conviction was of a misdemeanor on July 16, 1976; this February 9, 1976 case began as a traffic violation and ended with arrest for possession of one marijuana cigarette. Although Pacino could not relate any details or reasons for the many arrests, he admitted to them on his application and during the hearing. Petitioner stated the reasons for his arrest problems have been corrected and he only wishes to make a living for his family selling real estate. This is credible as the witness answered questions fairly and honestly without hesitation or equivocation. A medical doctor and a business acquaintance, both friends of the family, attested to Petitioner's good reputation in the community for honesty, trustworthiness and fair dealing since 1978.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Paul Pacino be granted and that the Board of Real Estate issue a real estate salesman's license to Paul Pacino. DONE AND ENTERED this 4th day of December, 1980, in Tallahassee, Florida. H. E. SMITHERS Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1980. COPIES FURNISHED: Linda Lawson, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, LL04 Tallahassee, Florida 32301 Stuart H. Sobel, Esquire 744 North West 12th Avenue Miami, Florida 33136 C. B. Stafford Executive Director 400 West Robinson Avenue Orlando, Florida 32801
The Issue Whether petitioner's application for a real estate salesman's license should be denied on the ground that he fails to meet the requirement that an applicant be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. "
Findings Of Fact In March, 1981, petitioner filed an application for licensure as a real estate salesman. (Joint Exhibit 1.) Question No. 6 of the application and petitioner's answer (underlined below) were as follows: 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 vio- lations), without regard to whether convicted, sentenced, pardoned or paroled? Yes. If yes, state details including the outcome in full: Arrested in Savannah, Georgia 1974 for Sales and Possession of Marijuana--Case Dropped- Beaufort, South Carolina 1974 Simple Posses sion of Marijuana--fined $100.00--1978 following to [sic] close--Sarasota, FL $31.00 fine. (Joint Exhibit 1.) At hearing, petitioner confirms his answer to Question No. 6. In 1974, he was in the U.S. Marine Corps and stationed at Beaufort, South Carolina. He was arrested twice on criminal charges. On August 14, 1974, he was arrested in Savannah, Georgia, on charges of possession and sale of marijuana. The present state of the charges is uncertain. At hearing, petitioner invoked his Fifth Amendment privilege in response to questions concerning the circumstances surrounding that arrest. His second arrest occurred in Beaufort, South Carolina; on November 7, 1974, he pleaded guilty to the criminal charge of simple possession of marijuana and paid a $100 fine. Other than a subsequent arrest in Port Charlotte, Florida, arising out of a marriage dissolution (the charge of withholding means of support was ultimately dropped) , petitioner has not been arrested or convicted of any crime since 1974. (Testimony of R. Kiebler; Joint Exhibits 2, 3.) During the last five years, petitioner has been employed by various glass and window companies in southwest Florida. Since February, 1981, he has worked as a salesman for Bill's Custom Glass and Mirror Company in Naples, Florida. In that capacity, he called on contractors, read prints, submitted bids, and signed contracts. He performed his work well; his employer considers him to be a very honest and reliable individual. (Testimony of Reagan, R. Kiebler; Joint Exhibit 1.) Since moving to Naples in February, 1980, petitioner has earned a reputation for truthfulness, honesty, and fair dealing in business affairs. (Testimony of S. Kiebler.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Ronald Leroy Kiebler for a Florida real estate salesman's license be GRANTED. DONE AND RECOMMENDED this 12th day of November, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 12th day of November, 1981. COPIES FURNISHED: Michael E. Burns, Esquire 945 Central Avenue Naples, Florida 33940 Jeffrey A. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate 400 West Robinson Street Orlando, Florida 32789
The Issue An Administrative Complaint dated May 20, 1998, alleges that Respondent James Collins, violated Section 475.25(1)(m), Florida Statutes, when he falsely stated on an application for licensure that he had never pled guilty to, nor was convicted of a crime. The issue for disposition is whether that violation (obtaining a license by means of fraud, misrepresentation, or concealment) occurred, and if so, what discipline is appropriate.
Findings Of Fact James Collins has been an active real estate salesperson in Florida since July 28, 1994, having been issued license No. 0614229. On his application for licensure dated January 22, 1994, Mr. Collins answered "no" to this question no. 9: 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." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In addition, he executed this affidavit statement on the application form: . . . The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. The response by Mr. Collins to question no. 9 failed to disclose that on September 18, 1978, he pled guilty to possession of not more than 5 grams of cannabis, a misdemeanor. His plea was in writing and he did not attend court. On September 21, 1978, he was adjudged guilty and sentenced to pay a fine of $495, plus costs totaling $37.75. His attorney paid the fine. The plea was the outcome of Mr. Collins' arrest for possession of controlled substance, Section 893.13, Florida Statutes, on April 21, 1978, at the Orlando International Airport. He was 28 years old at the time of arrest and 29 years old upon sentencing. At hearing, Mr. Collins' explanation of his arrest was that he and some friends were at the airport getting ready to fly to Ft. Lauderdale. The security check lady found a "little bit of marijuana," "less than a tenth of a gram of marijuana," in his carry-on bag. He was arrested and put in a holding room at the airport and did not make the flight to Ft. Lauderdale. He also explained that he was on crutches after having broken his hip playing racquetball and was taking pain medication. Mr. Collins further explained that he contacted an attorney, James Russ, a friend of the family, who wanted $10,000 to "make it go away." Mr. Collins did not have that money so he contacted another attorney, Richard Rhodes, who advised him to plead guilty. According to Mr. Collins, he remembered none of this incident until confronted by the Division of Real Estate. Then, in 1997, at the invitation of a Division staff person, Ms. Atkinson, Mr. Collins wrote a letter explaining the circumstances. His letter, dated December 16, 1997, tells a somewhat different story from that given at the hearing: . . . I was charged with possession of 1/10 of a gram of cannabis that was on the ground beside me and about 1000 other people, O.I.A. [illegible]. My attorney, James M. Russ told me just to plead guilty to possession of less than 5 grams of cannabis. It would be a lot cheaper than going to court. He told me to just forget about this and go on with your life and that is exactly what I have done. I paid a fine-no probation. I never even went to court. The only person I saw was James Russ and that is exactly what I've done until your letter came. (Petitioner's Exhibit No. 4.) . . . Except for the amount of marijuana, the police report was more consistent with Mr. Collins' letter than with his account at the hearing. That is, according to the apprehending officer, Mr. Collins fled a search of his shoe, ran to the airport main entrance and starting shaking a bag of marijuana on the sidewalk, where he was apprehended. A letter from attorney Richard Rhodes and the written plea document confirm that it was Mr. Rhodes, not James Russ, who represented Mr. Collins in the airport matter. Mr. Collins averred that he simply forgot the arrest and plea when he filled out his licensure application. In explaining the oversight he also added that he felt comfortable with his "no" answer because he had passed the FBI fingerprint check. Mr. Collins' explanations of the circumstances of his arrest and subsequent guilty plea are inconsistent and evasive. His lack of candor in these matters contributes to the non- credibility of his excuse that he simply forgot the incident altogether when he was filling out his licensure application. In recent years Mr. Collins has been active in his church and his daughter's school. She is 16 years old and he is her sole support, as her mother, his wife, died 7 years ago. In the 4 1/2 years that he has been licensed there have been no other complaints related to Mr. Collins' practice of real estate.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Florida Real Estate Commission enter its Final Order finding that Respondent violated Section 475.25(1)(m), Florida Statutes, and revoking his real estate license. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 30th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Frederick Wilsen, Jr., Esquire Gillis and Wilsen 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Center Tallahassee, Florida 32399
Findings Of Fact At all times relevant hereto Brian Rothschild, Respondent, was registered with the Florida Board of Real Estate as a real estate salesman and was employed by Mascar Realty, Inc. Thomas Palumbo was the active broker for Mascar Realty, Inc. On 15 January 1981 Respondent obtained a listing contract on a residence from Annette Seidman. This exclusive right of sale was for a six- month period and provided for a commission of ten percent (10 percent) upon sale. The contract was accepted by Palumbo as broker and active firm member. Shortly after executing the listing contract Mrs. Seidman became dissatisfied with the services of Respondent, her husband became ill and also faced a jail sentence for contempt of court, and she wanted to take the house off the market. She communicated the desire to take the house off the market to Respondent. Respondent communicated this information to Palumbo, who sent Mrs. Seidman a letter largely drafted by Respondent (Exhibit 2). Subsequently, Mrs. Seidman talked with Palumbo, told him of her personal problems, advised that she would reimburse Mascar Realty for the costs incurred in servicing the listing agreement, and that she was not satisfied with Respondent. Two incidents which disturbed Mrs. Seidman occurred when she returned home following an open house held by Respondent at her residence. One of these incidents was the presence of several young girls outside the house talking to Respondent, and another was seeing Respondent remove a pistol from the waistband of his trousers and place it in his briefcase as he prepared to leave. Upon receipt of this information and the agreement by Mrs. Seidman to reimburse the realty firm, coupled with his belief that the house would not sell at the asking price, Palumbo released Mrs. Seidman from the listing agreement. After executing the release Palumbc called Respondent into his office and told him he had released the listing. Respondent testified that Palumbo fired him; Palumbo testified Respondent resigned and he (Palumbo) was happy to have Respondent go. Whichever version is true is not material. Shortly after his employment was terminated with Mascar Realty, Respondent filed a complaint in the Circuit Court in Broward County against Annette Seidman for the commission he would have earned had he sold the house, and for other damages allegedly resulting from the termination of the listing agreement. He also filed a notice of lis pendens in the property records of Broward County which was not authorized by the owner of the property against which it was filed. The complaint was dismissed by the Circuit Court and Respondent has appealed this decision to the District Court of Appeal. As the result of the complaint and appeal filed by Respondent, Mrs. Seidman has incurred expenses for attorney's fees which she would not have incurred had the complaint and lis pendens not been filed.
Findings Of Fact In his application for licensure as a real estate salesman dated January 19, 1982, Petitioner answered question 6 inquiring about previous arrests "yes" and for details wrote "see attached page." On the attached page Petitioner noted to see attached copy of his past driving record. That record shows four traffic violations in 1975, two in 1976 and one in 1977. Only one of these violations resulted from an accident and in this accident there were no injuries. None of these violations were for DWI. On April 1, 1975 Petitioner became 17 years old. On the attached page Petitioner also wrote in answer to question 6: In 1976 applicant was charged with breaking and entering after turning himself in to the police upon advice of the naval recruiting officer. Was exonerated of charge upon entering U.S. Navy soon thereafter. In 1977 applicant was charged with possession of marijuana. Sentenced to six months probation. After successfully completing said proba- tion charges were removed from ap- plicant's record. In checking police files in Ottowa County, no record of these charges will be found. I hope my honesty in this matter will be taken into consideration. NOTE: Both criminal violations mentioned occurred in Holland, Michigan, Ottowa County. The breaking and entering charges were dropped and Petitioner was never tried on those charges. The check made by Respondent through the Florida Department of Law Enforcement revealed no criminal record for Petitioner. This is corroborated by Exhibit 1. In 1977 when Petitioner was found guilty of possession of marijuana at the age of 19, it appears that adjudication of guilt was withheld and upon successful completion of six months' probation this offense was expunged from the record. This offense did not show up on the FBI fingerprint search conducted on this application. This too is corroborated by Exhibit 1. Possession of a small amount of marijuana is a misdemeanor. Petitioner has had no arrests for any offense, including traffic offenses, in the past four years (since he was 20 years old). His reputation for truth and veracity is good and he can be trusted in a business transaction. On the witness stand Petitioner presented a forthright demeanor and fully answered all questions. He applied for a job as an account executive with A. G. Edwards & Sons and after completing the battery of tests and the interview with the Vice President and Branch Manager of the New Port Richey office, the latter deemed Petitioner qualified. Exhibit 2 corroborates Petitioner's testimony in this regard. If the brokerage business picks up Petitioner expects to be employed in the A. G. Edwards office in February, 1983. While working as a correctional officer at Pasco County Correction Center, Petitioner was promoted temporarily to assist shift supervisor and was recommended for permanent promotion to shift supervisor. (Petitioner's testimony corroborated by Exhibit 4.)
Findings Of Fact According to petitioner's uncontroverted testimony, he signed the notarized application for licensure as a real estate salesman, dated March 30, 1983, and gave the otherwise blank form, along with a separate piece of paper on which he had written answers to questions appearing on the form, to an employee of a real estate school he attended. The form was to be completed and mailed without his seeing it again; this was customary, he explained. On the separate piece of paper, he wrote answers to every question but number six, which asks: 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? Respondent's Exhibit No. 10. An anonymous typist supplied the word "no," and typed "NA" in the blank following the instructions, "If yes, state details including the outcome in full." Respondent's Exhibit No. 10. In fact, petitioner was arrested on January 29, 1971, and subsequently convicted for failure to appear in court on traffic charges in Pensacola. On October 28, 1976, petitioner was arrested on bad check charges. He pleaded guilty and was convicted on two counts on November 12, 1976. Respondent's Exhibit No. 1. On January 10, 1977, petitioner was convicted of seven additional counts of "worthless checks." Respondent's Exhibit No. 2. Later the same month, also in Pensacola, he was adjudicated guilty of another such offense. Respondent's Exhibit No. 3. Petitioner's next brush with the law was his apprehension and, in Pensacola, on May 11, 1978, conviction for indecent exposure. Respondent's Exhibit No. 4. On October 10, 1978, petitioner failed to appear for a trial scheduled on still another bad check charge. As a result, he was adjudicated guilty of contempt of the County Court of Escambia County. Respondent's Exhibit No. 5. At the hearing in the present proceedings, he first testified that he had not been adjudicated guilty of this charge, then said that this conviction was reversed on appeal. In giving this second version of events, petitioner recounted a highly improbable appellate hearing. He described in detail being present at oral argument on the appeal before a panel of three circuit judges, whom he named, and reported that his lawyer argued for reversal against the county judge who appeared in person to argue for affirmance of the contempt conviction. On April 9, 1979, petitioner was convicted of five counts of making and utilizing forged instruments. Respondent's Exhibit No. 7. These instruments purported to be checks drawn on his grandmother's account. Probation imposed on account of earlier charges was revoked at the same time. In addition, he was adjudicated guilty of writing numerous bad checks. Respondent's Exhibit 9. On this as on other occasions, he spent time in jail. He never spent more than four months in jail at one stretch, however. He was convicted in Pensacola on May 20, 1981, of writing two more checks against insufficient funds, each for $500. Petitioner claimed to be current on his child support payments and testified that he thinks he is honest and honorable. Before counsel for respondent produced the court records at hearing, petitioner, while under oath, misrepresented his criminal record in various respects. Petitioner's civil rights, except for the right to bear arms, were restored administratively on September 23, 1982. The second time he applied for licensure as a real estate salesman, petitioner answered question six more candidly. Both parties made posthearing submissions. Proposed findings of fact have been considered and adopted, in substance, for the most part. Proposed fact findings have been rejected where unsupported by the evidence, immaterial, subordinate or cumulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure as a real estate salesman. DONE and ENTERED this 8th day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 December, 1983. COPIES FURNISHED: Lawrence S. Gendzier, Esquire Assistant Attorney General Room 212, 400 West Robinson Street Orlando, Florida 32801 Douglas Michael Burleson Post Office Box 18045 Pensacola, Florida 32523 Randy Schwartz Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Based upon the documentary evidence received, the testimony of Respondent and the entire record compiled herein, the following relevant facts are found. By its Administrative Complaint filed herein on September 28, 1981, Petitioner, Board of Real Estate, Department of Professional Regulation, seeks to suspend, revoke or take other disciplinary action against the Respondent as a licensee and against his license as a real estate broker/salesman under the laws of the State of Florida. Respondent is a real estate broker/salesman and has been issued License No. 0315273 by Petitioner. On June 9, 1981, Respondent was charged by the State Attorney of the Seventeenth Judicial Circuit of Florida, with violations of Florida Statutes Subsection 812.014(1)(b), and Florida Statutes subsection 812.014(2)(b), criminal theft and second degree grand theft, respectively, to wit: that the Respondent did unlawfully use, or endeavor to use the property of Rus Realty, Inc. (his former employer), an IBM typewriter, of a value in excess of one- hundred dollars ($100.00), with the intent to appropriate the property to his own use or to the use of any person not entitled thereto, knowing or having reason to know said property was stolen. (Petitioner's Composite Exhibit No. 1) On April 22, 1981, Respondent appeared in the Circuit Court, in and for the Seventeenth Judicial Circuit, in and for Broward County, Florida, and entered a plea of nolo contendere to the offense of grand theft and it was ordered and adjudged that the adjudication of guilt and imposition of sentence would be withheld and Respondent was placed on probation for a period of two (2) years. (Petitioner's Composite Exhibit No. 1) Respondent admits to the fact that he entered a nolo contendere plea and that he was placed on probation for a period of two (2) years. However, he testified that he, while formerly employed as a salesman with Rus Realty, Inc., purchased a typewriter from a handyman who was working for Rus Realty, Inc., Tomm Marty, for which he paid one hundred fifty dollars ($150.00) cash for an IBM selective typewriter. (Respondent's late-filed Exhibit No. 1) In mitigation., Respondent, while admitting to the above facts, offered that he had learned a lesson by his involvement in the above purchase of the referenced typewriter. Respondent also related the fact that he had, in addition to losing the money for the purchase of the above typewriter, expended substantial legal fees in an effort to resolve the criminal and administrative charges surrounding the above-referred incident. Respondent learned a lesson by his involvement in the above transaction and has vowed to never again be involved in any questionable acts and/or
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: That Respondent's broker/salesman License No. 0315273 be suspended for a period of thirty (30) days from the date of the Petitioner's final order herein 2/ . RECOMMENDED this 21st day of July, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1982.
The Issue The general issue for determination in this proceeding is whether, under Section 57.011, Fla. Stat. (1989), the Florida Equal Access to Justice Act, the Department of Professional Regulation, Division of Real Estate (DPR), should pay Dorothea L. Prisament and Warricks Real Estate, Inc., attorney fees and costs incurred in their defense to the Administrative Complaint DPR filed in DOAH Case No. 89-6293. As reflected in the Preliminary Statement, the parties stipulated that Prisament and Warricks operate as a "small business party" 1/ and that the amount of the fees and costs they seek is reasonable. It already has been ruled, by Order Denying [DPR's] Motion to Dismiss, that Prisament and Warricks "prevailed" in the underlying administrative proceeding. The only remaining issues under the statute are whether the Respondent was "substantially justified" in filing the Administrative Complaint in Case No. 89-6293 and, if not, whether "special circumstances exist that would make an award unjust."
Findings Of Fact On or about August 16, 1989, DPR's investigator Marjorie G. May conducted an office inspection and audit of the escrow account of Dorothea L. Prisament and Warricks Real Estate, Inc. (Prisament is a licensed real estate broker who serves as qualifying broker for Warricks, a corporate real estate broker owned by Prisament.) May's audit revealed to her that the escrow account had a $1,380.86 shortage. This determination was in error. In adding the entries she had copied down by hand from the Warricks records to arrive at the total amount required in the escrow account, May inadvertently entered an incorrect $7,000 figure into her calculator instead of the correct figure of $1,000. As a result, the total incorrectly indicated a $1,380.86 shortage instead of the actual overage that was in the account. May also noted that the office entrance sign did not have Prisament's name on it as broker; the sign did have Warricks's correct name, identified as a licensed real estate broker, on it. On October 17, 1989, a probable cause panel of the Florida Real Estate Commission deliberated on information presented to it as the report of May's investigation. The information included a draft proposed Administrative Complaint that alleged a $1,380.86 shortage in the escrow account as the basis for four counts (two each against Prisament and Warricks); two counts (one each against Prisament and Warricks) alleged the improper signage. Attached to the draft proposed Administrative Complaint was a copy of May's handwritten notes correctly listing the entries from Warricks's records. In addition, the information presented to the probable cause panel included a copy of the calculator tape showing how May entered these amounts into her calculator-- including the erroneous entry--to arrive at a total amount required in the account (the incorrect total.) The draft proposed Administrative Complaint also alleged: When the [DPR's] investigator suggested that Respondent Prisament go over the books again to make sure nothing was overlooked prior to making up the shortage, Respondent Prisament replied "I dont't have time." The Respondents replaced the shortage on August 24, 1989. The copy of the Investigative Report attached to the draft proposed Administrative Complaint supported these allegations. It also disclosed that Prisament agreed on the day of the inspection and audit, August 16, 1989, to make up the shortage and that she signed an Office Inspection and Escrow/Trust Account Audit Form by which she agreed "to take corrective action within 10 days." The Investigative Report also recites that Prisament told May on the day of the inspection and audit: "It is believed the deficit came from errors as opposed to any 'intentional' withdrawal." Additional information presented to the probable cause panel included a copy of a "speedy reply message" from Prisament to May, dated August 24, 1989, that said, among other things: "Due to several deals not closing, I was short of the amount you say I owe but now have obtained it and have deposited in into my Escrow Account. . . . Thanks for your help correcting us." Attached was a copy of the check and the deposit slip. May's Investigative Report was signed by May and by her supervisor, John W. Shrive, Inv. Mgr. The information was presented to the probable cause panel by the DPR's attorney as establishing an escrow shortage and with the comment: "We believe this supports a charge of culpable negligence and failure to maintain sufficient funds in a trust account." The probable cause panel found probable cause, reciting that the finding came "after a complete review of the file." One member commented: "I guess he'll have time to come to a hearing." On or about October 18, 1989, DPR filed the six-count Administrative Complaint. At the formal administrative proceeding in the case, the error in calculating the amount required in the escrow account was disclosed, and the true facts were made clear. The parties filed a Joint Proposed Recommended Order, which formed the basis of the Recommended Order in the case. Eventually, a Final Order was entered adopting the Recommended Order. The four counts involving the allegation of a shortage in the escrow account were dismissed. The two counts involving the improper sign (which were characterized as "technical violations" that were "immediately corrected") were sustained, and Prisament and Warricks were reprimanded. On or about December 6, 1990, Prisament and Warricks filed a Petition for Attorney's Fees and Costs.
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
The Issue The issues are whether Respondent is guilty of interfering with or intimidating any person who is, or is expected to be, a witness in any investigation or proceeding relative to a violation of Chapter 475, Florida Statutes, in violation of Section 475.42(1)(i), Florida Statutes.
Findings Of Fact Respondent was actively licensed as a Florida real estate salesperson through March 31, 2002, and was so licensed during the events described below. In 2001, Anna Marie Nealey and her husband, Edward Nealey, were selling their home in Oviedo. On January 20, 2001, Respondent submitted a contract of purchase and sale on behalf of the buyer, Paul Branic. The parties agreed to a closing on March 2, 2001. The record does not describe in much detail the nature of this real estate transaction. The exhibits do not include even the contract. The only witness was Ms. Nealey, who claims only a limited understanding of the transaction. Ms. Nealey's complaint centers on Respondent's handling of an earnest money deposit, but no competent evidence supports findings of any kind concerning such a deposit or how it was handled. In her complaint letter to Petitioner, Ms. Nealey describes her dissatisfaction with a closing statement that her friend and real estate agent received on April 11, although it seems that the statement was prepared by an independent closing agent, not Respondent. Ms. Nealey asserts that, two days after receiving the closing statement, she and her real estate agent met with the closing agent, who stated that $3150 had been paid the sellers outside closing. Ms. Nealey's complaint letter adds that she and her husband left the closing without any money, although she does not preclude the possibility of a credit for the $3150 by way of a note or other credit on the closing statement. When Ms. Nealey finally spoke with Respondent, he said that he had done everything that he was supposed to have done. Ms. Nealey's complaint states: "I didn't like the manner in which he talked to me about this situation; it led me to believe there was more than what was being told." Later, Ms. Nealey's letter asserts: "I have a gut feeling that [Respondent] is trying to hide some things, and won't be completely honest with me. . . . I just want to know if there is a copy of a cashier's check or money order receipt given to the mortgage company with our names on it and where my money is at this time." By letter dated May 18, 2001, one of Petitioner's investigators acknowledge the receipt of Ms. Nealey's "recent complaint." However, the complaint letter itself is undated. Also on May 18, 2001, Mr. and Ms. Nealey entered into an agreement with Respondent. Respondent agreed to pay the Nealeys $3550 upon the delivery of a duly assigned note, originally from Mr. Branic to the Nealeys; a signed covenant against further action; and a signed statement to the Florida Department of Banking to the effect that the dispute involving Respondent has been settled. The covenant provides that the Nealeys will not file a legal action or disciplinary complaint against Respondent or the mortgage company, and the $3550 settles all pending disputes to the full satisfaction of the Nealeys, who retract any allegations that they had already made against Respondent or the mortgage company. Prior to the signing of the Agreement and other settlement documents, the Nealeys had filed a complaint with the Florida Department of Banking and Finance against a mortgage company involved in the transaction. Respondent was aware of this complaint when he and the Nealeys signed the Agreement and the Nealeys signed the other settlement documents. However, when signing the Agreement, Respondent was unaware that the Nealeys had also filed a complaint against him with Petitioner. After signing the Agreement, Ms. Nealey informed Respondent that she had also filed a complaint against him with Petitioner. Respondent became angered and refused to complete the settlement transaction, although he called the Nealeys the next morning and indicated he would purchase the mortgage the following day, which he did. A few days later, when Respondent received formal notice of the Nealeys' complaint from Petitioner on May 23, 2001, he wrote them a letter accusing them of defrauding him out of $3550 and identifying their action as a basis for a civil proceeding in fraud and misrepresentation and for criminal action. The letter warns that, if the Nealeys did not take corrective action immediately, Respondent would file a civil action and refer the matter to the State Attorney's Office. The letter adds that the Nealeys' original claims were baseless, but time-consuming and damaging to business reputations. The Nealeys' satisfaction with the $3550 that they obtained for the Branic second mortgage sufficed for the Florida Department of Banking and Finance to close the case against the mortgage company. However, Petitioner continued to prosecute this case, which originally involved claims arising out of the underlying transaction and a claim arising out of the post- closing dealings between Respondent and the Nealeys, but now only involves a claim arising out of the post-closing dealings between Respondent and the Nealeys. As already noted, the record does not permit more than a rough reconstruction of the real estate transaction that has engendered this disciplinary case. However, Ms. Nealey supplied more detail during her testimony than she supplied in her complaint letter. She conceded during her testimony that she and her husband had agreed to hold a second purchase-money mortgage and note from Mr. Branic. Ms. Nealey testified that her problems with the transaction only surfaced when Mr. Branic failed to make payments on this mortgage and another that he had given to Ms. Nealey's real estate agent. This failure caused Ms. Nealey to file her complaints against the mortgage company, and Respondent. Based on this record, there is no evidence of any fraud or misdealing by Respondent in the underlying real estate transaction. It appears that the Nealeys, and perhaps Ms. Nealey's real estate agent, took notes from Mr. Branic, and Mr. Branic did not make the payments for very long. It appears that, even though she lacked evidence of misdealing, Ms. Nealey reported suspicions and concerns to Petitioner, and it appears that Petitioner initially found cause to prosecute Respondent for his acts and omissions in connection with the underlying transaction, as well as his post-closing acts and omissions. It is unclear if Petitioner's theory of the remaining case relies in part on Respondent's acts and omissions in connection with the Agreement and other settlement documents. If so, this theory would fail because Respondent did not then know that Petitioner had filed a complaint against him with Petitioner. Absent Respondent's knowledge that Petitioner had commenced a prosecution, he could not have been capable of interfering with a witness against him. The evidence clearly fails to establish any such knowledge on the part of Respondent at the time of the execution of the Agreement and payment of the $3550 for the Branic second mortgage. At the time, Respondent thought only that he was resolving a complaint filed against a mortgage company, not him, with the Florida Department of Banking and Finance. If he had already known of the complaint already filed with Petitioner, he would not have angrily lost his temper, refused to close, and then regained his composure the next day and close promptly on the settlement. When given the opportunity, Ms. Nealey could not supply any other reason for Respondent's otherwise- inexplicable behavior. By the time of the May 23 letter, Respondent, who had been aware of the complaint with Petitioner for several days, surmised either that the Nealeys had not performed their end of the bargain or that, if they had, Petitioner would not drop the disciplinary case. The threat of civil action is unremarkable because, on the facts of this record, it was justified. The threat of a criminal complaint to gain civil advantage raises a distinct issue, but, more important to this case, is whether Respondent was interfering with, or intimidating, a witness in an investigation or prosecution against him. A close examination of the record reveals Respondent's exasperation with a complainant's willingness to use the power of the disciplinary process to insulate herself from the consequences of her bad business judgment and impose these consequences unfairly upon Respondent. Although not obligated to do so, Respondent voluntarily bought the Branic second mortgage and reasonably thought that he was thus purchasing the satisfaction and acquiescence of the Nealeys. When Petitioner failed to dismiss the subject case (until the start of this hearing), Respondent threatened Ms. Nealey with severe consequences if she did not then stop complaining about him. In essence, as her complaints were groundless, the threat demanded only that Ms. Nealey stop her prevarications and start to tell the truth--i.e., by admitting that she and her husband had made a bad business decision in taking the Branic second mortgage and Respondent had relieved them of the mortgage, although he had not legally been required to do so. The May 23 letter represents an attempt by Respondent to coerce Ms. Nealey to tell the truth. Such an effort serves, rather than impedes, Petitioner's investigation by allowing it to gather facts on which it may make an informed determination whether Respondent violated any disciplinary laws. Evidently, when apprised of those facts, Petitioner determined that Respondent had not violated any such laws in the underlying transaction, nor did he in his post-closing dealings with the Nealeys.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of August, 2003, in Tallahassee, Leon County, Florida. S 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 27th day of August, 2003. COPIES FURNISHED: Marie Powell, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32308-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Christopher J. DeCosta Senior Attorney Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Suite N-801 Orlando, Florida 32801 Jonathan M. Dougherty 127 West Fairbanks Avenue Number 439 Winter Park, Florida 32789
