The Issue The issue to be determined is whether Petitioner's application for licensure should be granted.
Findings Of Fact Respondent, Department of Financial Services, is the state agency responsible for the licensure of insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes. On January 6, 2004, Respondent received an application from Petitioner for temporary licensure as a life and health insurance agent. Petitioner answered "no" to the following question on that application: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a crime under the laws of any municipality, county, state, territory [or] country, whether or not adjudication was withheld or a judgment of conviction was entered? At the end of the application, immediately above a space for the applicant's signature and in a section of the application titled "Applicant Affirmation Statement," appears the following language: I do solemnly swear that all answers to the foregoing questions and statements are true and correct to the best of my knowledge and belief. . . . * * * Under penalties of perjury, I declare that I have read the foregoing application for license and that 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). Pursuant to the instructions on the form, Petitioner signed the application, dated it December 12, 2003, and mailed it to Respondent. As documented by General Court Martial Order No. 17-01 of Sea Control Squadron Three Two at the Naval Air Station, Jacksonville, Florida, obtained by Respondent during the application process, Petitioner, on January 18, 2001, entered a plea of guilty to the charge of Distribution of Ecstasy, a Felony, and was found guilty of the offense. Petitioner was sentenced to confinement for a period of 40 months, and reduction to pay grade E-1, and subjected to dishonorable discharge. A portion of the sentence was suspended upon the issuance of the dishonorable discharge, following an order of Rear Admiral Jan C. Gaudio on May 30, 2002. By correspondence to Respondent, received on June 29, 2004, and through his testimony at the final hearing, Petitioner asserted that his attorney at the time informed him that his criminal record would never be seen outside the military. Notwithstanding his attorney’s assurance, Petitioner informed two subsequent employers that he thought he had a felony record. When those employers checked and discovered no convictions, he assumed the records were sealed as his previous attorney had assured him would be the case. Accordingly, he did not disclose the matter on his application. By Notice of Denial dated June 7, 2004, Respondent informed Petitioner that his application was denied for violations of Sections 626.611, 626.621(8), 626.785(1), and 626.831(1), Florida Statutes. Additionally, the denial informed Petitioner of required waiting periods set forth in Florida Administrative Code Rule 69B-211.042. In Petitioner’s case, he was also informed that a 16-year waiting period would be required before reapplication could be considered by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent acted properly in denying Petitioner’s application. DONE AND ENTERED this 4th day of January, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 January, 2005. COPIES FURNISHED: Gregg Allen Brewer 9342 Cumberland Station Drive Jacksonville, Florida 32257 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Peter Dunbar, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issues to be resolved in this proceeding are whether Respondent committed the violations alleged in the Amended Administrative Complaint dated February 29, 2013, and, if so, what disciplinary action should be taken against Respondent.
Findings Of Fact Petitioner is the state agency charged with the regulation of real estate licensees pursuant to chapter 475, Florida Statutes. At all times material to this case, Mardy was licensed as a Florida Real Estate Broker. Her license number is 3048239. No prior disciplinary action has been brought against Respondent. Mardy has been actively licensed as a broker in Florida since April 6, 2010. From April 8, 2010, to present, Mardy also served as the registered broker with Mardy’s Premier Properties, Inc., license number CQ1036525. The brokerage company was located at 12180 Southshore Boulevard Suite 101A, Wellington, Florida 33414. Approximately seven years ago, Mardy assisted Alix and Patricia Pasquet (“Pasquets”) with a rental transaction. In 2011, when the Pasquets decided that they wanted to lease a rental residence near their sons’ school, they decided to contact Mardy to assist them in obtaining the rental residence since they had been satisfied with her previous service. The Pasquets decided to lease the rental residence at 11188 Millpond Greens Drive, Boynton Beach, Florida 33473, (“Millpond”). The Pasquets made an offer to pay the rent a year in advance to benefit from the reduced rental amount with a full year’s payment. Mardy informed the Pasquets that the rental money needed to be in the U.S. instead of Haiti in order to execute the leasing agreement and then the Millpond owner would accept their offer to lease the property if they showed proof of funds in the U.S. prior to April 6, 2012. On or about April 5, 2012, the Pasquets wired Mardy the total rent for the year in the amount of $33,365.00 to Mardy’s Premier Properties, Inc.’s bank, PNC Bank, at Mardy’s request. Mardy received the monies in the corporation’s operating account ending in 6863. Mardy accepted the Pasquets’ rental funds with the direction to use the monies to secure Millpond as a rental residence for the Pasquets. On or about April 9, 2011, the Pasquets signed a lease addendum, which was predated to April 5, 2011. The addendum indicated the rent payment would be wired to the Millpond owner upon commencement of the lease or prior thereto. After the addendum was signed, Mrs. Pasquet tried to follow-up with Mardy to schedule the Millpond walk through that had been discussed at the previous meeting. She attempted to contact Respondent to no avail for about a week to schedule the Millpond walk through. When Mrs. Pasquet finally reached Mardy, Respondent informed her that her unavailability was because of a death in the family since her grandmother had passed. Around April 25, 2011, Mardy informed Mrs. Pasquet that she no longer had the Pasquets’ $33,365.00. Respondent provided several different reasons for use of the Pasquets’ monies. All explanations given were for both a personal and improper use, and without the Pasquets’ permission. Hence, the undersigned rejects any of Mardy’s excuses as valid or credible. Respondent never delivered the Pasquets’ rental monies to the Millpond owner nor closed the rental deal with the Millpond owner or his agent for the lease of Millpond. At hearing, Respondent admitted that she used the Pasquets’ $33,365.00 without their permission. On or about April 26, 2011, the Pasquets negotiated a lease directly with Millpond owner and leased Millpond for six months. They did the walk through on or about April 29, 2013, and moved into the Millpond property on or about May 8, 2013. After the Pasquets discovered that Mardy had taken their $33,365.00, they contacted an attorney to assist them with the matter to try to get the rental monies back. The police also became involved in the attempt of the Pasquets to get their rental monies back. When the police became involved, Respondent agreed to pay the money back to the Pasquets. On or about July 7, 2011, Respondent paid the Pasquets $10,000.00 with check number 75053315-2. On or about July 8, 2011, Respondent paid the Pasquets $3,365.00 with check number 75115202. On or about October 27, 2011, Respondent paid the Pasquets $5,000.00 with check number 0734873625. At the hearing, Mardy had not made a payment since October 2011. The Pasquets have spent thousands of dollars on legal fees trying to get their rental monies back from Respondent. Respondent owes them approximately $15,000.00. The Pasquets were forced to withdraw unbudgeted funds from their business in order to pay for the six-month lease for Millpond, which has been a financial hardship for the Pasquets. Jonathan Platt ("Investigator Platt") is employed by the Division as a Lead Investigator. Investigator Platt has worked for the Division for approximately 22 years. Investigator Platt was assigned the complaint regarding the Pasquets' missing rental funds. He interviewed Respondent and requested Respondent's corporation bank records as part of his investigation. Mardy failed to deliver the bank records to Investigator Platt. Respondent also failed to maintain an escrow account or accounting of rent deposited into the corporation’s bank account ending in 6863 with PNC Bank. Investigator Platt completed his investigation by obtaining Mardy's requested records directly from PNC Bank with an investigative subpoena duces tecum. Afterwards, the Division issued an Administrative Complaint against Mardy in which it charged violations of sections 475.25(1)(b), 475.42(1)(i), 475.25(1)(d)1, 475.25(1)(e), Florida Statutes (2010); and Florida Administrative Code Rules 61J2-14.012(1) and 61J2- 14.010(1). Respondent challenged the Administrative Complaint and requested a hearing. No dispute exists that the request for hearing was timely filed.
Recommendation Based on 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: Finding Guirlande Mardy violated Counts 1, 3, 4, and 5 of the Amended Administrative Complaint; and Imposing revocation of Guirlande Mardy's license identified herein. DONE AND ENTERED this 30th day of April 2013, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2013. COPIES FURNISHED: Christina Ann Arzillo, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Guirlande Mardy 14541 Draft Horse Lane Wellington, Florida 33414 Juana Watkins, Director Division of Real Estate 400 W Robinson Street, N801 Orlando, Florida 32801 Darla Furst, Chair Real Estate Commission Department of Business and Professional Regulation 400 W Robinson Street, N801 Orlando, Florida 32801 J. Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Notice of this proceeding was provided Compton by registered mail return receipt requested at the last address provided the Florida Real Estate Commission by Compton and also at the forwarding address obtained by the Florida Real Estate Commission. Compton was arrested for failure to appear in court to answer a traffic citation, in the City of Hollywood, Florida. Compton was also arrested for possession of cannabis and found to be not guilty in the City Court of Pompano Beach. Compton was also named in an information charging him with burglary in California. He was placed on 5 years probation and proceedings were suspended by the Superior Court, Los Angelos County, California. These records were provided the Florida Real Estate Commission from the clerks of the courts named above. Investigator Freeman testified that because of Compton's vigorous denials, a second check of Compton's arrest records based upon fingerprint identification was made by the Federal Bureau of Investigation, which confirmed by fingerprint comparison that the records of arrests were those of the individual who applied for registration to the Florida Real Estate Commission as Ray F. Compton. Ray F. Compton concealed on his application for registration the fact that he had been arrested in Florida for failure to appear in Court, possession of cannabis and in California for burglary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the registration of Ray F. Compton be revoked. DONE and ORDERED this 2nd day of December, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Bruce I. Kamelhair, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Ray F. Compton 9134 Boyer Lane Mentor, Ohio 44060
The Issue Whether respondent placed an unpermitted sign alongside U.S. 29 0.7 miles south of U.S. 90 in Escambia County in violation of Section 479.07(1), Florida Statutes?
Findings Of Fact At the time and place appointed for the hearing, neither party appeared or adduced any evidence. The hearing officer was later apprised that the parties had reached at least an oral agreement settling the dispute.
The Issue The issue presented is whether Charles Simon violated subsections 475.25(1)(b) and (f), Florida Statutes (1985) by pleading guilty to crimes involving moral turpitude or fraudulent and dishonest dealing, i.e. grand theft and trafficking in stolen property by reissuing and refunding airline tickets without making payment for them.
Findings Of Fact Charles Simon was at the times material to this proceeding licensed as a real estate broker in the State of Florida holding license number 0123689. The last license was issued to him as a broker at 90 Beacon Boulevard, Miami, Florida 33135. On about October 15, 1986, Mr. Simon pled guilty to six counts of an indictment alleging violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Act), grand theft and trafficking in stolen property for issuing and refunding of airline tickets without making payment for them. Adjudication of guilt was withheld and Mr. Simon was placed on community control for a period of twenty-four months to be followed by a period of probation of eight years, and he was ordered to pay $50,000 in restitution and court costs. By letter dated October 9, 1986, Respondent informed the Commission of having pleaded guilty to a felony. By letter dated January 6, 1987, Mr. Simon wrote again to the Commission, stated that he had received no reply to his letter of October 9, 1986 and enclosed a carbon copy of the October 9, 1986 letter. The Commission never received his first (October 9, 1986) letter, although it did receive a copy of it when attached to the January 6, 1987 letter. The Department relies solely upon the records of the conviction to make its case. It did not dispute Mr. Simon's explanation of the events underlying his guilty plea. Mr. Simon's version of the events is accepted, in part because his testimony was not contested by the Department, and in part because the explanation is plausible. In May of 1983, Mr. Simon's wife owned a travel agency in Dade County. His real estate office was located in the same suite of offices. While clerical employees of the travel agency would sometimes perform work for the real estate office they were wholly separate businesses. Mr. Simon was not an officer or employee of the travel agency and received no money from it. In May, 1983 Mr. Simon's wife put the agency up for sale. Travel agencies are approved by the Air Traffic Corporation (ATC) to write airline tickets on generic ticket stock if they meet certain requirements. ATC affiliation is important to a travel agency because it makes accounting to airlines for tickets sold much simpler. ATC serves as a clearinghouse; at the end of the week a travel agency sends one check to ATC for all tickets written during the week. ATC separates the billings according to airline, and writes one check to each airline for all tickets sold by the agents belonging to ATC. Blank ticket stock is valuable and purchasers must qualify through ATC to buy a travel agency that is an ATC member. Otherwise an untrustworthy new owner could write tickets out, collect money and never pay the ATC who in turn would not be able to pay the airlines. Mrs. Simon was familiar with people who expressed an interest in purchasing her agency, but they asked her not to tell ATC of the sale. When notified of the impending sale ATC would investigate the qualifications of the proposed new owners, and their previous employer or present employer would be contacted by ATC. The potential buyers were currently working at another travel agency. They wanted to buy Mrs. Simon's agency and move their clients to their new agency (Mrs. Simon's agency). They did not want to tip off their present employer of their intentions by having ATC contact the present employer. Mrs. Simon agreed to withhold notification to ATC to facilitate the sale of the travel agency. After the ownership of the travel agency was transferred and most of the purchase price had been paid, Mrs. Simon was informed that the new owners had ticket stock from other travel agencies at the agency she had sold. Although this is not a violation of any statute, it violates ATC rules and alerted Mrs. Simon that something was wrong. She realized that the reason the purchasers did not want to notify the ATC of the transfer was that they were engaging in a "bust out" of the agency, i.e., issuing valid airline tickets without receiving payment for them. The tickets would then be returned to the airlines for cash refunds (although they had never been paid for) or resold to others at less than their face value. Ultimately, ATC revoked the agency's authority to issue tickets, but by then the owners had defrauded the airlines of many thousands of dollars. Mrs. Simon panicked and Mr. Simon agreed to try to handle the situation. Instead of reporting the matter to the police Mr. Simon tried to cover it up so that Mrs. Simon would not be implicated in wrongdoing. Precisely what Mr. Simon did in his attempt to keep his wife from being implicated in the purchasers' scheme was not explained at the hearing. Those individuals involved in the "bust out" were ultimately arrested and convicted. Mr. Simon was also charged because of his involvement with the sale after Mrs. Simon discovered the purchasers' scheme. Under the sentencing guidelines the charges made against him would have called for a sentence of six years in jail. The state attorney's office agreed to two years of community control, eight years probation and $50,000 restitution to the airlines, if Mr. Simon would plead guilty to the charges rather than require a trial; the state attorney also agreed that no charges would be filed against Mr. Simon's wife in return for his guilty plea. The state attorney's office further agreed to a withholding of adjudication of guilt so that Mr. Simon's real estate license would not be affected. Based on 1) the cost of going through a trial to defend himself and potentially another legal proceeding for the defense of his wife (which would exceed $50,000) and, 2) his erroneous belief that a guilty plea with a withholding of adjudication would not affect his real estate license, Mr. Simon agreed to the state attorney's offer as being in his best interest even though he believed that he had done nothing illegal. Since that time Mr. Simon's community control has been terminated and he has been placed on regular probation, which merely requires a once a month report to a probation officer which can be done by mail. It has also been agreed that Mr. Simon may return to England to live. The lightness of the sentence and the reduction of the period of community control corroborates Mr. Simon's argument that the state attorney's office knew that he had not been involved in the fraudulent plan to "bust out" his wife's travel agency, although he was not entirely forthcoming when the purchaser's plan was discovered.
Recommendation It is RECOMMENDED that a final order be entered finding Mr. Simon guilty of violation of subsection 475.25(1)(b), Florida Statutes as charged in Count I of the administrative complaint and guilty of violation of subsection 475.25(1)(f), Florida Statutes as charged in Count II of the administrative complaint and that the real estate broker's license held by Mr. Simon be revoked. DONE and ORDERED this 21st day of September, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1987. APPENDIX The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Proposals of the Petitioner's: Rejected as unnecessary. Covered in Finding of Fact 1. Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. COPIES FURNISHED: Charles Simon 90 Beacon Boulevard Miami, Florida 33135 Mr. Charles Simon 10435 S.W. 76th Street Miami, Florida 33173 James H. Gillis, Esquire Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission P. O. Box 1900 Orlando, Florida 32802 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent has been a registered real estate salesman with the Florida Real Estate Commission from February 17, 1967, until the present. The Respondent was indicted by a federal grand jury in the Middle District of Florida and charged with devising and intending to devise a scheme and artifice to defraud certain named persons and entities by use of the mails and further charged with the commission of an overt act in furtherance of said scheme. U.S. v. Hawk, Case No. 68-47-ORL CR, U.S. District Court for the Middle District of Florida, Orlando Division. On October 11, 1968, the Respondent pled guilty to the offense of devising a scheme to defraud others and executing said scheme by use of the United States Mail and by telephone in violation of Title 18, Section 1341, U.S.C. The Respondent was sentenced to four years' imprisonment upon his plea of guilty. He served 17 months of his sentence before being paroled, which parole ended in October, 1972. The charge to which the Respondent pled guilty and was found guilty did not, in any manner, involve the sale of real property. Since his conviction and release from prison, the Respondent has worked as a real estate salesman. The Florida Real Estate Commission has shown no complaint lodged against Mr. Hawk regarding his registration as a real estate salesman from February 17, 1967, until the present, other than the complaint and allegations presently being considered. There has been no showing that Nelson F. Hawk engaged in any conduct warranting suspension of his registration as a real estate salesman other than that conviction heretofore referred to in 1968. Nelson F. Hawk is guilty of a crime against the laws of the United States involving fraudulent dealing as evidenced by the certificate of Wesley R. Thies, Clerk, United States District Court for the Middle District of Florida.
