The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent’s license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department’s Division of Real Estate was the state agency in Florida responsible for the licensing of real estate salespersons and brokers in Florida and for the presentation of disciplinary cases regarding those individuals on behalf of and before the Florida Real Estate Commission. The Respondent was a licensed Florida real estate broker having been issued license number 0453845. Respondent was a broker at Quality Home Realty Inc., located at 8319 North 40th Street in Tampa. On or about June 10, 1996, Respondent, who was then licensed as a real estate salesperson in Florida, submitted an application for licensure as a real estate broker in this state. Respondent answered “no” to question 9 of the application, which reads, in pertinent part: 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? . . . If you intend to answer “NO” because you believe those records have been expunged or sealed by court, . . . you are responsible for verifying the expungement or sealing prior to answering “NO.” 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. As a result of this application and her passing the brokers’ examination, Respondent was licensed as a real estate broker in Florida. In fact, however, on January 13, 1992, Respondent had pleaded nolo contendere in County Court in Hillsborough County to a charge of obtaining property by worthless check. Respondent was licensed as a salesperson at the time. Adjudication was withheld and Respondent was ordered to make restitution and pay a fine and costs of $87.00, which she did. Respondent does not deny that she entered the plea as alleged. She contends, however, that at the time the check was issued, she was in the hospital receiving treatment for chemical damage to her lungs. She alleges that she had given several personal checks on her account, signed in blank, to her niece, Ms. Palmer, who was supposed to pay her bills with them after first depositing sufficient funds, which Respondent had also given her, to the bank to cover the checks. Respondent contends that her niece did not make the deposits on time and the check in issue, written to pay for automobile repairs, was dishonored. The repair man did not contact her to obtain reimbursement, but the check was, nonetheless, subsequently redeemed. Respondent’s factual allegations in this regard were confirmed by Ms. Palmer, and they are so found. Respondent also contends that several years later, by the time she filled out the application form for licensure as a broker, she had forgotten about the incident because, she claims, the judge had advised her the charge against her would be dismissed upon her making restitution and her payment of the fine and costs. She claims she did not believe she had a criminal conviction which had to be listed. She also contends that since the incident was a matter of public record, she had no reason to hide it, and that her failure to list it on the application was the result of a simple mistake. Her claim of mistake is rejected. Respondent has been a licensed real estate professional since being licensed as a salesperson in January 1995. To her knowledge, no complaints have ever been lodged against her, nor has any other disciplinary action ever been taken against her. The records of the Division reflect no complaints or any prior disciplinary action. However, Respondent admits that several years prior to her licensure as a salesperson, she was arrested for assault. That charge was dismissed. Respondent is presently active as a real estate broker and derives all her support from her practice. She claims to love the real estate business and contends she has a good reputation in the business community. In that regard, four individuals, including two real estate brokers, a deputy sheriff, and a long-standing friend and associate, submitted letters in support of Respondent’s continued licensure. The two brokers attest to her honesty, integrity, and professionalism, as did the deputy, who also works in the profession. The friend, an associate in community activities, attests to Respondent’s extensive involvement in youth reclamation activities and her church, and describes Respondent as a role model for the youth of the community. All support her maintaining her license and her continued participation in the profession.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Eulauia S. Harris guilty of a violation of Section 475.25(1)(m), Florida Statutes, and placing her license on probation for a period of two years. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire Gillis & Wilsen 1999 West Colonial Drive Suite 211 Orlando, Florida 32804 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0700 James Kimbler Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact 8. The factual allegations contained in the Order of Penalty Assessment issued on September 22, 2009, which is fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-235-D3-OPA, and being otherwise fully advised in the premises, hereby finds that: 1. On July 8, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Request for Production of Business Records for Penalty Assessment Calculation in Division of Workers’ Compensation Case No. 09-235-D3- OPA to JUAN MERLO D/B/A MERLO HARVESTING. 2. On July 8, 2009, the Request for Production of Business Records for Penalty Assessment Calculation was served by personal service on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Request for Production of Business Records for Penalty Assessment Calculation is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On September 22, 2009, the Department issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-235-D3-OPA to JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment assessed a total penalty of $104,004.19 against JUAN MERLO D/B/A MERLO HARVESTING. The Order of Penalty Assessment included a Notice of Rights wherein JUAN MERLO D/B/A MERLO HARVESTING was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On September 25, 2009, the Order of Penalty Assessment was served by certified mail on JUAN MERLO D/B/A MERLO HARVESTING. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On October 13, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed a petition for administrative review with the Department. The petition for administrative review was forwarded to the Division of Administrative Hearings on October 22, 2009, and the matter was assigned DOAH Case No. 09-5854. 6. On December 14, 2009, JUAN MERLO D/B/A MERLO HARVESTING filed A Notice of Voluntary Dismissal with the Division of Administrative Hearings. A copy of the Notice of Voluntary Dismissal is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On December 16, 2009, the Administrative Law Judge issued an Order Closing File which relinquished jurisdiction to the Department for final agency action. A copy of the Order Closing File is attached hereto as “Exhibit D” and incorporated herein by reference.
Findings Of Fact The Department of Professional Regulation, Board of Psychological Examiners initiated an Administrative Complaint in Department of Professional Regulation Case No. 81809, DOAH Case No. 89-0599, against Petitioner, Frank A. Brown, Ph.D., on January 13, 1989. Petitioner is the owner and proprietor of a professional service business engaged in the practice of psychology. At the time of the filing of the Administrative Complaint, Petitioner's business employed less than twenty- five (25) full-time employees and had a net worth under two million dollars. Additionally, Petitioner's residence, business domicile, and principal office were located in Florida, and have been so located since 1976. The Administrative Complaint alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology, that the Petitioner failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, and that Petitioner was unable to practice the profession for which he is licensed under Chapter 490, Florida Statutes, with reasonable skill or competence as a result of impairment due to a mental or physical condition or by reason of illness, drunkenness, or excessive use of drugs, narcotics, chemicals or any other substance, pursuant to Florida Statutes, 1981-1987. On August 24, 1989, an Amended Administrative Complaint was filed alleging the same violations pursuant to Florida Statutes, 1981-1986. Petitioner disputed these allegations and requested a formal administrative hearing. Prior to hearing in the underlying proceeding, DOAH Case Number 89- 0599, Petitioner moved for dismissal of the Amended Administrative Complaint. Petitioner's motion was denied by the Hearing Officer. A formal hearing was held in this matter on September 12-13, 1989. At the hearing and after presentation of a portion of the testimony, the Department voluntarily dismissed its allegation of sexual misconduct in the practice of psychology. The hearing proceeded on the remaining two charges in the Amended Administrative Complaint. After the close of the evidence and submission of Proposed Recommended Orders by both parties, the Hearing Officer, on May 14, 1990, filed a Recommended Order recommending dismissal of the Amended Administrative Complaint against the Petitioner. On July 2, 1990, the Department of Professional Regulation, Board of Psychological Examiners, filed a Final Order adopting the Recommended Order and dismissed the case consistent with the Hearing Officer's Recommended Order. Therefore, Petitioner became the prevailing party in the underlying action. The allegations against Petitioner contained in the Administrative Complaint resulted from a complaint received in 1987 from R.B. and D.B. concerning the care and treatment R.B. received from Petitioner in his capacity as a psychologist which centered on the illicit 7-year love affair between R.B. & Petitioner. It was the turmoil caused by the discovery of this affair by D.B., R.B.'s husband, that caused Petitioner, in April, 1987, to be examined and treated at CPC Parkwood Hospital in Atlanta, Georgia by Psychiatrist Warren A. Hinson, M.D. The Petitioner was advised of the complaint made by R.B. and D.B. around April 14, 1987. Petitioner responded through his attorney on at least two separate occasions with factual and legal arguments regarding the complaint lodged by R.B. and D.B. On November 9, 1987, a Probable Cause Panel of the Board of Psychological Examiners met to review the investigative report and responses from Petitioner. The investigative report consisted of several statements from R.B. and D.B., the responses from Petitioner, an interview with a Dr. Trotter, who had rendered psychological services to both R.B. and Petitioner, together and separately, and various documentary evidence. The investigative report was submitted to the Probable Cause Panel of the Board of Psychological Examiners by the Chief Attorney for Allied Health Services of the Department of Professional Regulation under cover of a memorandum dated October 27, 1987. The memorandum states that the case was being submitted without a recommendation for an administrative complaint or closing order in Petitioner's case. The memorandum states: The attached case is being submitted without a recommended A/C or C/O. There are legal problems with charging sexual misconduct, although a strong argument could be made to support a finding that the subject failed to meet minimum standards of professional per- formance. Another issue, is the subject's fitness to practice by reason of emotional problems. Dr. Brown's attorney has suggested that the probable cause decision be deferred to allow Petitioner to enroll in the Impaired Practitioner's Program. Although there is no statutory provision for a psychologist to participate in the IPP, I see no reason why if couldn't be accomplished (by mutual agreement). The Chief Attorney realized that there was a problem with the allegations against Dr. Brown, in light of the retroactive application of a recent rule of the Board of Psychological Examiners defining the psychologist/client relationship as continuing in perpetuity for purposes of sexual misconduct allegations and in light of the fact that Dr. Brown's conduct could be construed to have occurred after the termination of the professional relationship between Petitioner and R.B. The legal problem created by the fact that Dr. Brown's conduct could be construed to have occurred during a time when the practice of psychology was not regulated did not occur to the Chief Attorney at the time of the 1987 meeting. However, as indicated by both the memorandum and transcript of the comments made at the probable cause meeting there were legal arguments which could be legitimately made which might overcome the problems with this case. 1/ These arguments also could be applied to the legal problem caused by the absence of a statute regulating the practice of psychology. The Probable Cause Panel, in the course of their review, considered the suggestion from Petitioner that a determination of probable cause be deferred pending the entry of the Petitioner into a program for impaired practitioners similar to the Impaired Practitioners Program utilized by other professions regulated by DPR. At that meeting, the Probable Cause Panel of the Board of Psychological Examiners, after reviewing the investigative report and attachments, believed there was sufficient evidence to find probable cause. However, in light of the problems with this case and Petitioner's request to attempt to enter an impaired practitioners program (IPP), the Probable Cause Panel agreed to defer a finding of probable cause on condition that Petitioner develop and present to the Probable Cause Panel a comprehensive treatment and practice plan and possibly undergo a psychological/psychiatric evaluation. Around November 10, 1987, the Chief Attorney for the Department of Professional Regulation, Allied Health Services, notified the Petitioner that the Probable Cause Panel of the Board of Psychology voted to "defer the probable cause decision", and requested that Petitioner initiate action to be accepted into an IPP and further, that Petitioner provide a comprehensive practice and treatment plan for the Probable Cause Panel's consideration at its next meeting. The Chief Attorney also requested that Petitioner's attorney contact the Department when he had the requested documentation prepared. Importantly, neither the transcript nor the letter from the Department's Chief Attorney indicates what the Board or the Probable Cause Panel might do after the deferral period. At best, from a reading of the transcript, it appears that the Panel intended to leave its options open as to whether the Panel might later find probable cause even if Petitioner complied with the Panel's instructions. Clearly, both attorney's involved in the matter hoped the case would be settled. However, such attorney's hopes do not translate into a Board or Panel promise or settlement agreement to forgo action against Petitioner should he comply with the Panel's instructions. Given the transcript of the probable cause panels meeting, deferring a decision cannot be translated into an agreement to not take any action by the Panel. 2/ In any event, the Petitioner initiated action to enroll in an IPP. Around January 1988, Dr. Goetz, Director of the Physician Recovery Network accepted Petitioner into the IPP program. Dr. Brown began participation in the Impaired Practitioners' Program by undergoing a five day inpatient evaluation in Atlanta. There was no judgment reached from this five day review that Petitioner was either incompetent or that he could not return to practice. Since there was no actual impairment of Dr. Brown, he returned to Pensacola to continue quarterly evaluations by psychiatrist Lawrence E. Mobley, M.D., and Pat O'Connell, M.D., and psychotherapy supervision with psychologist Jack Keller, Ph.D. The Department received several generalized reports of Petitioner's status and progress with the IPP program. The reports were dated July 29, August 18, August 16, November 10, and December 1, 1988. The Department also received at least two status reports from Petitioner's attorney. Around October 6, 1988, the Petitioner's attorney requested from the IPP program the information necessary to develop a comprehensive practice and treatment plan as requested by the November, 1987, Probable Cause Panel. The Respondent was never provided a comprehensive treatment and practice plan which was satisfactory to it. However, the Petitioner did make attempts to comply with this requirement. 3/ Believing Petitioner had complied with the Board's instructions, sometime around October 6, 1988, Petitioner's attorney informed the Department the Petitioner was established with an IPP program and that the matter was now ready for the Board's consideration. On December 4, 1988, the Probable Cause Panel reviewed the investigative report which included, in part, the diagnosis and report of Dr. Hinson relating to the Petitioner and his hospitalization at CPC Parkwood, in Atlanta, Georgia; the Petitioner's responses and arguments as presented by his attorney's correspondence with DPR; the Petitioner's letter to R.B., returning professional fees previously collected during treatment; the August 5, November 10, and December 1, 1988, reports from the IPP program regarding Petitioner; the opinions of Patrick Cook, Ph.D., and Deborah Frank, R.N. Ph.D., L.M.F.T.; the interviews of R.B. and D.B.; additional sworn statements of R.B. and D.B., and various documentary evidence associated with the underlying case. Neither Dr. Brown nor his attorney were permitted to attend this Probable Cause Panel's meeting. On the same date, the Probable Cause Panel after reviewing the investigative report, discussing the allegations, and consulting with legal counsel for the Board, Mr. Allen Grossman, Assistant Attorney General, by unanimous vote determined the existence of probable cause and directed the issuance of an Administrative Complaint as outlined in paragraph 3 above. At the time a finding of probable cause was made by the Board, at least two factual issues were considered by the Probable Cause Panel. Those issues were whether the Petitioner built his intimate relationship with R.B. upon an existing professional relationship interrelated with whether there had been a termination of that professional relationship and whether Petitioner's romantic involvement with R.B. occurred during a time when the practice of psychology was a regulated profession. The Probable Cause Panel relied upon the interviews of R.B. and her additional sworn statements regarding her romantic and professional relationship with the Petitioner. These statements as well as other evidence in the investigative file supported a finding of probable cause of sexual misconduct with a patient. Additionally, the Probable Cause Panel reasonably relied upon the statements of R.B. and D.B. and Petitioner's responses to DPR, regarding his relationship with R.B. and her family in finding probable cause of practicing below the prevailing standard for practice. On both these issues, the relevant time periods involved in this case were unclear from the information the Probable Cause Panel had before it. However, there was enough evidence in the investigative file for the Board to reasonably conclude that Petitioner had engaged in actions which would subject him to discipline during a time when the practice of psychology was regulated or cause his later behavior to relate back to a time when the practice of psychology was regulated. Additionally, as noted with the 1987 Probable Cause Panel, there were legitimate legal arguments which could be made in an attempt to overcome the problems due to a lack of rules or statutes incurred in the underlying action. Therefore, given the fact that the Board had a reasonable basis in law and fact to find probable cause against Petitioner for violation of Chapter 490, Florida Statutes, Petitioner is not entitled to an award of attorney's fees. The Probable Cause Panel also, considered the issue of Petitioner's mental health vis a vis Petitioner's ability to safely practice psychology. This latter issue and the resultant charge in the Administrative Complaint appears to be a "throw in" charge for which the Panel had no reasonable legal or factual basis to find probable cause. However, the issue of Petitioner's mental health was never seriously prosecuted by the Department and did not play a significant role in the litigation or the fees expended in the litigation. Additionally, the evidence did not demonstrate what portion of the Petitioner's attorney's fees and costs could be attributed to this single issue. Therefore, Petitioner is not entitled to an apportionment of attorney's fees and costs based on this issue.
