The Issue The issue in this case is whether the crime of which Petitioner was convicted in the District of Columbia, namely simple assault under that jurisdiction's law, directly relates to the activities of a real estate sales associate, thereby warranting Respondent's intended decision to deny Petitioner's application for licensure as a sales associate.
Findings Of Fact Respondent Florida Real Estate Commission ("FREC") is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. On September 11, 2018, Petitioner Milain David Fayulu ("Fayulu") applied for licensure as a real estate sales associate. In his application, Fayulu truthfully answered the question asking whether he had ever been convicted of a crime. Fayulu disclosed that he had been convicted of simple assault in the District of Columbia as the result of "[a]n altercation with a fellow student at American University in Washington DC," which had occurred on April 7, 2014. He further reported that he had completed all terms of sentence, which included one year of probation and 100 hours of community service. Fayulu did not mention that he also had been sentenced to 180 days of incarceration, the execution of which had been suspended, but FREC has not faulted him for this. The Judgment of conviction entered on January 15, 2016, by the Superior Court of the District of Columbia in United States v. Fayulu, Case No. 2014-CF2-006367, confirms that Fayulu pleaded guilty to one count of simple assault and received the sentence just described. As evidence of what happened on April 7, 2014, FREC relies almost entirely on the Affidavit in Support of an Arrest Warrant (the "Arrest Report"), which was subscribed and sworn to on April 10, 2014, by a District of Columbia law enforcement officer whose name is illegible (the "detective"). According to the Arrest Report, the detective interviewed three people in preparing his description of the incident: the arresting officer, the complainant, and a witness to the offense. To the extent relevant,1/ however, the entire narrative of the Arrest Report (the "Probable Cause Allegations"), with one possible, but largely immaterial exception,2/ is hearsay that is neither admissible pursuant to a recognized exception to the hearsay rule, nor corroborative of any competent, persuasive, nonhearsay evidence in the record that needs to be supplemented or explained.3/ Thus, the Arrest Report is not competent substantial evidence of the truth of the matters concerning the offense asserted therein.4/ The Arrest Report is not hearsay evidence of one fact, however; namely, that the prosecutor, and the judicial officer who approved the issuance of an arrest warrant, concluded (along with the detective) that the Probable Cause Allegations justified a charge of aggravated assault while armed ("AAWA") under D.C. Code section 22-404.01——a far more serious offense5/ than the simple assault of which Fayulu ultimately would be convicted.6/ This means that the government did not need to prove all of the Probable Cause Allegations——and, for all we know based on the instant record, could not have proved them beyond a reasonable doubt——to obtain Fayulu's conviction. The actual charging document containing the government's formal allegations against Fayulu is not in evidence. Nor is the transcript of the plea colloquy. As a result, the undersigned cannot make any findings regarding the specific factual admissions Fayulu made when he pleaded guilty to the simple assault charge. To be clear, Fayulu's guilty plea is not an admission to the truth of the Probable Cause Allegations in their entirety, for, as just explained, the government did not have the burden of proving those allegations in toto to support a simple assault conviction. If this sounds like hair-splitting, it is only because the undersigned has not recited (and will not repeat) the unproved Probable Cause Allegations. To be sure, it is extremely tempting to evaluate Fayulu's testimony against the backdrop of the alarming Probable Cause Allegations and to conclude that he is being cagey or unforthcoming about what really happened during the incident that led to his arrest and conviction. This is because the Arrest Report enjoys unearned credibility, probably owing to a general respect for law enforcement, whereas Fayulu's testimony, which depicts the incident in a much less malevolent light (as perpetrators do, we imagine), is readily, albeit unfairly, presumed to be self- serving. FREC's intended decision to deny Fayulu's application is, in fact, based on the premise that, as a matter of historical fact, Fayulu behaved as described in the Arrest Report, even though there is no competent substantial evidence in the record proving the Probable Cause Allegations. Fayulu tried to make this legal point in the proceedings before FREC, but——not being a lawyer and representing himself——he did so somewhat clumsily and managed mostly to come off sounding like he had something to hide. At hearing, after some prodding, Fayulu testified that on the evening of April 7, 2014, he and his two roommates were in a car heading home from the library, where they had been studying, when the alleged victim (the complainant) approached their vehicle, which was stopped at the exit from the library's parking lot as the driver waited for a break in traffic to pull out onto the street. The complainant spit on the driver through an open window. The driver parked the car and the three men got out. They began yelling at the complainant. According to Fayulu, the complainant threw the first punch, so to speak, which triggered a brawl that lasted for two or three minutes. Fayulu was directly involved in the fight, which was violent and caused the combatants to fall to the ground. Fayulu and his friends then decided to stop the altercation. The complainant, who afterwards remained standing on the side of the street, "seemed perfectly fine" and was "in a physically decent condition" in Fayulu's opinion, having been neither bloodied nor knocked unconscious during the affray. Fayulu and his two companions walked back to their car and left. Fayulu's account of the incident provides a sufficient basis in fact to support a conviction for simple assault under D.C. law, which is analogous to misdemeanor battery under section 784.04, Florida Statutes. Fayulu's testimony about what happened is not inherently unbelievable, moreover, and there is no competent substantial evidence in the record refuting his version of the event. While it is likely that Fayulu has tried to put himself in the best possible light consistent with the truth, and despite some obvious testimonial ducking and weaving, the undersigned cannot find that he intentionally lied. At any rate, if it weren't for Fayulu's evidence about the facts and circumstances comprising the underlying offense (as opposed to the fact of his conviction, which is undisputed), there would be none at all.
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 approving Fayulu's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 5th day of June, 2019.
Findings Of Fact The Respondent is a licensed real estate broker and salesman. In proceedings on January 9, 1981, in the Circuit Court, 17th Judicial Circuit in Case No. 80-8846 CF, and in the absence of the Respondent, Respondent's Counsel first indicated to the judge that he was entering a plea of no contest for the Respondent but changed that plea to one of guilty of misdemeanor trespass (Section 810.08) on the basis of the entry of an adjudication withheld. The court noted the Respondent's authorization of his Counsel to enter the plea. The court withheld adjudication and placed the Respondent on probation for six months, and assessed as a special condition of the probation $150 in court costs and restitution in the amount of $100.
Recommendation The Board has not demonstrated a violation of Section 475.25(1)(f), Florida Statutes, by the Respondent. Therefore, the charges should be dismissed, and no disciplinary action should be taken against Respondent based upon the allegations contained in the Administrative Complaint. DONE and ORDERED this day 4th of June, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 4th day of June, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 South East Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's April 24, 2007, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is 26 years old. He lives in Orlando and works as a server at Hue, an upscale restaurant located in downtown Orlando. Hue is owned by Urban Life Management, a company that owns several restaurants and a real estate brokerage company. Petitioner also serves as an office manager at the real estate office, and would work as a sales associate in that office after obtaining his license. On or about August 28, 2006, Petitioner filed an application for licensure as a real estate sales associate with the Department of Business and Professional Regulation, Division of Real Estate ("Division"). On that application, he answered in the affirmative to question number one in the Background Information section. Question number one states, in pertinent part, "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication"? By letter to Petitioner, dated September 8, 2006, the Division requested additional information from Petitioner regarding his answer to question number one. In response, Petitioner submitted documentation showing that he had been convicted in November 2002 of trafficking in amphetamine, particularly MDMA (ecstasy), in violation of Subsection 893.135(1)(f), Florida Statutes, a first degree felony. Petitioner was sentenced to imprisonment for a period of 90 days, followed by 18 months of probation. Petitioner successfully completed his probation on July 14, 2004. At the time of his offense, Petitioner was a 20-year old student at the University of Central Florida ("UCF"). On August 19, 2001, Petitioner acted as the middleman in a drug transaction, delivering 5,000 ecstasy pills to a purchaser for $41,250.00. Petitioner expected to receive about $5,000 for his participation in the deal. However, the prospective buyer of the pills was a confidential police informant, and Petitioner was arrested. As a consequence of his guilty plea, Petitioner was expelled from UCF. Subsequent to his arrest, Petitioner cooperated with law enforcement authorities by acting as a confidential source. Petitioner's extensive cooperation led to a greatly reduced sentence based on the recommendations of law enforcement officials. The drug trafficking conviction is Petitioner's only criminal offense. Petitioner currently works two jobs. He works as a server at Hue in the evening and as office manager for the real estate company during the day. Both of Petitioner's supervisors testified in support of Petitioner's application. Neal Barton is the general manager of Hue and has been Petitioner's direct supervisor at the restaurant since hiring him in August 2002. Mr. Barton testified that Petitioner disclosed his criminal record at the time he was hired. Mr. Barton testified that Petitioner is an exemplary employee, honest, reliable, and dedicated. Mr. Barton relies on Petitioner to train other servers, and to check their work. Lisa Gould is Petitioner's supervisor at the real estate company. She has worked with Petitioner for approximately five months, and testified that Petitioner disclosed his criminal record to her. Ms. Gould testified that Petitioner is honest and hardworking. She would not hesitate to use Petitioner as a sales associate under her broker's license. Craig Ustler, the president and owner of the companies that employ Petitioner, testified in support of Petitioner's application. Mr. Ustler is a real estate broker and appraiser, and testified that he would not hesitate to hire Petitioner as a sales associate. In addition to working, Petitioner pursued higher education after serving his time in jail. In May 2004, he received his Associate in Arts degree from Valencia Community College. He then re-applied to UCF, and was admitted subject to disciplinary probation for his entire enrollment. As part of the readmission process, Petitioner was required to participate in therapy with Laura Riddle, a professional training consultant and "life coach." Ms. Riddle submitted a letter of support for Petitioner, in which she described him as honest, and a man of integrity and strong moral character. Petitioner graduated from UCF with a degree in finance on May 4, 2007. Petitioner attributed his criminal conduct to growing up in an environment of substance abuse that led him into a period of drug dependence. At the time of his arrest, Petitioner was an ecstasy user. Petitioner completed a six- month program at the Center for Drug Free Living in Orlando, as well as an aftercare program, and credibly testified that he has not used drugs since his arrest in August 2001. Petitioner's license application was considered by the Commission at its meeting on March 21, 2007. Petitioner appeared at the Commission meeting and responded to questions from members of the Commission. The Commission voted at the meeting to deny Petitioner's license application. The denial was memorialized in a Notice of Intent to Deny dated April 24, 2007. The grounds for denial listed in the Notice of Intent to Deny included Petitioner's criminal record, as revealed in the license application; the recent nature of Petitioner's criminal offenses; and the fact that Petitioner is a convicted felon.
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 granting Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 7th day of September, 2007. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Nancy S. Terrel Hearing Officer Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulations Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Poul Hornsleth, Chairman Real Estate Commission Department of Business and Professional Regulations 400 W. Robinson Street, Suite 801N Orlando, Florida 32801
The Issue The issues to be determined are whether Respondent violated Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), and 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2-14.009, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate, having been issued license number SL 706026. During the time relevant to this case, Respondent was a sales associate affiliated with Jacksonville Home Finders, Inc., a brokerage company located in Jacksonville, Florida. Katrin Rabren was the broker/owner of Jacksonville Home Finders, Inc. (Homefinders). In approximately 2006, she hired Respondent as a sales associate, and Respondent's license was listed as affiliated with Homefinders in September 2006. In early April 2007, Ms. Rabren received a call from Alvin Reynolds, the owner of some property Homefinders was managing at 3501 Kernan Boulevard, Number 234, in Jacksonville. Mr. Reynolds was calling to ask for his funds from the rental of the property. The property was apparently rented and funds received from the tenant for a security deposit and first month's rent on or about March 12, 2007. However, those funds, totaling $1,444.99, were not placed in the broker's trust account. Ms. Rabren confronted Respondent about the funds and was told that Respondent spent the money on personal bills. Respondent told Ms. Rabren that she would replace the money. On April 5, 2007, Respondent gave Ms. Rabren a check made out to Jacksonville Homefinders for $1,489.99. The check was from an account for Winter Property Maintenance, Respondent's husband's company. Ms. Rabren's husband deposited the check in Homefinder's escrow account. On April 6, 2007, the check was returned for insufficient funds. Ms. Rabren paid the property owner out of her personal funds. Respondent has not replaced the funds or delivered funds to the employer/broker for deposit into the escrow account.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding that Respondent has violated the provisions of Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2- 14.009, as alleged in the Administrative Complaint, and revoking Respondent's license as a real estate sales associate. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of October, 2010.
The Issue The issue in this case is whether Respondent, Ricardo Cabrera, committed the offenses alleged in an Administrative Complaint issued by Petitioner, the Department of Financial Services, on March 9, 2005, and, if so, what penalty should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Financial Services (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to install and maintain fire suppression equipment and the investigation and prosecution of complaints against individuals who have been licensed in Florida. See Ch. 633, Fla. Stat. Respondent, Ricardo Cabrera, is and has been at all times material hereto a licensed Fire Equipment Dealer, Class C, in the State of Florida. Mr. Cabrera, who first applied for licensure as a Fire Equipment Dealer, Class C, on or about October 10, 1989, was issued license number 70219300011990 on January 17, 1990. The Department has jurisdiction over Mr. Cabrera’s licenses. Criminal Case. On or about October 20, 1989, after Mr. Cabrera had first applied for licensure by the Department, a criminal Information was filed in case number 89-38498, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, charging that on September 30, 1989, Mr. Cabrera, unlawfully and feloniously had in his actual or constructive possession cocaine, a controlled substance. On or about December 12, 1989, Mr. Cabrera pled nolo contendere to possession of cocaine, a third degree felony, in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida. Adjudication was withheld on the charge, and Mr. Cabrera was sentenced to probation for a period of one year and was ordered to successfully complete the T.A.S.C. drug program, a narcotics treatment program. As a result of the fact that the court withheld adjudication of guilt, Mr. Cabrera did not lose any civil rights. Mr. Cabrera's 1998 License Renewal Application; Count I. Mr. Cabrera applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 5, 1998. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 21, 1998, and the renewal of his Fire Equipment Dealer, Class C, license was granted on June 14, 1999. Mr. Cabrera's 1999 License Renewal Application; Count II. Mr. Cabrera again applied for renewal of his license as a Fire Equipment Dealer, Class C, on or about December 6, 1999. Mr. Cabrera was asked and answered in the negative the following question on the application for renewal he filed with the Department: “Have you ever been convicted or pled nolo contendere to a felony?” The question, "[h]ave you ever been convicted or pled nolo contendere to a felony” is clear and understandable. Given Mr. Cabrera's plea of nolo contendere to the felony of possession of cocaine on December 12, 1989, the only reasonable response to this question Mr. Cabrera should have given was "yes." Mr. Cabrera has given no explanation as to why he failed to answer the question truthfully. Mr. Cabrera's license renewal application was received by the Department on or about December 13, 1999, and the renewal of his Fire Equipment Dealer, Class C, license was granted on December 15, 1999. Mitigating/Aggravating Factors. An Administrative Complaint was filed against Mr. Cabrera on or about December 30, 1994, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he maintained two places of business without separate Fire Equipment Dealer licenses and qualifiers for each, and that he allowed an unlicensed person to conduct the business of a Fire Equipment Dealer. On or about August 8, 1995, Mr. Cabrera was placed on probation for two years and ordered to pay a fine of $1,000.00. An Administrative Complaint was filed against Mr. Cabrera on or about June 29, 2004, as Qualifier for BC & ABC Fire Extinguisher Maintenance, alleging that he allowed the insurance required to be carried by Section 633.061, Florida Statutes, for the business to lapse. On or about February 11, 2005, Mr. Cabrera was placed on probation for one year and ordered to pay a fine of $1,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Finding that Mr. Cabrera, did not violate Section 633.162(4)(f), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; Finding that Mr. Cabrera, violated Section 633.162(4)(g), Florida Statutes, as alleged in Counts I & II of the Administrative Complaint; and Revoking Mr. Cabrera's license for a period of four years from the date of the final order. DONE AND ENTERED this 21st day of July, 2005, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 21st day of July, 2005.
The Issue The issue to be resolved herein concerns whether the Petitioners are entitled to an award of attorney's fees in this proceeding. Embodied in that general issue are questions concerning whether the Petitioners are the prevailing parties; whether they meet the definition of "small business" parties, including the net worth amounts, enumerated in Section 57.111, Florida Statutes, as well as whether the disciplinary proceeding against both Petitioners was "substantially justified". See Section 57.111(3)(e) , Florida Statutes.
Findings Of Fact The Respondent is an agency of the State of Florida charged with licensing and regulating the practices of real estate salesmen and brokers by the various provisions of Chapter 475, Florida Statutes. Included within those duties is the duty to investigate conduct by realtors allegedly in violation of Chapter 475 and related rules and to prosecute administrative penal proceedings for which probable cause is found as a result of such investigations. At times pertinent hereto, both Ms. Maxwell and Ms. Cosyns, (then Pauline Sealey) were licensed realtors working as independent contractors for Mariner Properties, Inc. and V.I.P. Realty Inc. The complete file of the underlying proceeding DOAH Case No. 86-0140, was stipulated into evidence. That file included the Administrative Complaint filed against these Respondents and the Recommended and Final Order, which Final Order adopted the Recommended Order. The findings of fact in that Recommended Order are incorporated by reference and adopted herein. During the Petitioner's case, counsel for Petitioner voluntarily reduced the attorney's fees bills for both Petitioners such that Ms. Maxwell's bill is the total amount of $2,695.50 and Ms. Cosyns' bill is $17,200, rather than the original amounts submitted in the affidavit. Respondent acknowledged in its proposed Final Order that the fees and costs submitted by the Respondent were thus reasonable. The testimony the Petitioners presented through depositions, transcripts of which were admitted into evidence into this proceeding, was unrefuted. That testimony demonstrates that both Ms. Cosyns and Ms. Maxwell were prevailing parties in the administrative proceeding referenced herein brought by the Respondent, Department of Professional Regulation. They were individually named as Respondents in the Administrative Complaint whereby their professional licenses were subjected to possible suspension or revocation for alleged wrong doing on their part. There is no dispute that they were exonerated in that proceeding and are thus prevailing parties within the meaning of Section 57.111, Florida Statutes. The Petitioners are also "small business parties". In that connection, they both were independently licensed Real Estate professionals during times pertinent to the underlying proceeding and were acting in the capacity of independent contractors for all the activities with which the administrative complaint was concerned. Each established that her net worth is below the limit provided by Section 57.111 as an element of the definition of "small business party". The reasonableness of the fees having been established in the manner found-above and the Petitioners having established that they meet the definitional requirements of prevailing small business parties, there remains to be determined the issue of whether the proceedings against the two Petitioners were "substantially justified", that is, whether the proceeding had a "reasonable basis in law and fact at the time it was initiated by a State agency." See Section 57.111(3)(e), Florida Statutes. The facts concerning each Petitioner's case regarding the three counts of the Administrative Complaint relating to them are as found in the Recommended Order incorporated by reference herein. Respondent Maxwell was charged in the complaint with having worked in conjunction with an office manager, Mr. Hurbanis of V.I.P. Realty, in conspiring with him to submit a fraudulent real estate sales contract to a lending institution for purposes of financing. This allegedly involved submitting a contract to the lending institution with an inflated purchase price in order to secure one hundred percent financing, the scheme being more particularly described in that portion of the findings of fact in the Recommended Order related to Jean Maxwell. In fact, Ms. Maxwell did not work in the realty office as charged in the Administrative Complaint, but rather was employed by Mariner Properties, which may have been a related company. The contract in question, although alleged to be fraudulent was, in fact, a bona fide contract which was a legitimate part of the Real Estate transaction submitted to the bank for financing purposes, about which the bank was kept fully advised. All details of the transaction were disclosed to the lender. Maxwell was specifically charged with concealing the true contract from the lender in order to enhance the percentage of the purchase price that the bank would finance, done by allegedly inflating the purchase price in a second contract submitted to the bank. It was established in the disciplinary proceeding that no such concealment ever took place. In fact, Ms. Maxwell was purchasing a lot from her own employer, Mariner Properties. Two contracts were indeed prepared for the purchase of Lot 69, a single family lot on Sanibel Island. In fact, however, the difference of $42,875 and $49,500 in the stated purchase price, as depicted on the two contracts, was the result of continuing negotiations between Ms. Maxwell and the seller, who was also her employer. The difference in the two prices depicted on the contracts was the result of, in effect, a set-off to the benefit of Ms. Maxwell, representing certain employee discounts and real estate commission due from the employer and seller to Ms. Maxwell, the purchaser. As Petitioners' composite Exhibit 5 reflects, the lender involved, North First Bank of Ft. Myers, Florida, was fully apprised of all the details concerning this transaction at the time it was entered into and the loan commitment extended and closed. Mr. Allan Barnes, the Assistant Vice President of North First Bank revealed, in the letter contained in this exhibit in evidence, that there was no concealment or misrepresentation of the facts to his institution by Ms. Maxwell. This letter is dated April 18, 1984. The other related letter in that exhibit, of May 2, 1984 from attorney Oertel to attorney Frederick H. Wilson of the Respondent agency, thus constitutes notice to the agency well before the complaint was filed, that no concealment or misrepresentation to the lender involved had occurred and the charges were requested to be dismissed. In spite of the fact that the agency was on notice of this turn of events well before the filing of the Administrative Complaint, it proceeded to file the complaint and to prosecute it all the way up to the date of hearing, requiring Ms. Maxwell's attorney to attend the hearing to defend her interests. At the hearing, counsel for the Department acknowledged that there was no basis for prosecuting Ms. Maxwell and voluntarily dismissed the complaint as to her. The Respondent's witness, Investigator Harris, in his deposition taken September 11, 1984, acknowledged that he did not discuss any details concerning the investigation, with attorney Frederick Wilson, who prepared the complaint, nor did he confer with him by telephone or correspondence before the filing of the complaint. Therefore, the complaint was prepared solely on the basis of the investigative report. The investigative report came into evidence as Respondent's Exhibit 1. It reveals that Mr. A. J. Davis the president of Mariner Group and Mariner Properties, who was Jean Maxwell's employer and the owner of the lot in question, signed one contract and his Executive Vice President signed the other. In spite of this, the investigative report does not reveal that the investigator conferred with either Ms. Maxwell, or the sellers concerning this transaction. He conducted a general interview of A.J. Davis concerning the alleged "problem" in his office of "double contracting," but asked him no questions and received no comment about the Jean Maxwell transaction whatever. Nor did the investigator confer with Mr. Allen Barnes or any other representative of North First Bank. If the investigation had been more complete and thorough, he would have learned from Mr. Barnes, if from no one else, that the bank had knowledge of both contracts and all details of the transaction underlying them and there had been no concealment or misrepresentation of the facts regarding the transaction by Ms. Maxwell. This information was learned by attorney Oertel as early as April 18, 1984 by Mr. Barnes' letter, referenced above, and it was communicated to the agency by Mr. Oertel on May 2, 1984. Nevertheless, the complaint was filed and prosecuted through to hearing. Therefore, the prosecution and filing of the Administrative Complaint were clearly not substantially justified. If the Department had properly investigated the matter it would have discovered the true nature of the transaction as being a completely bona fide real estate arrangement. Former Respondent, Pauline Sealy Cosyns was charged with two counts, III and V, in the Administrative Complaint at issue. One count alleged, in essence, that Ms. Sealey had engaged in a similar fraudulent contract situation regarding the sale of her residence to a Mr. and Mrs. Thomas Floyd. The evidence in that proceedings revealed no concealment of any sales contract occurred whatever with regard to the lending institution or anyone else. The facts as revealed at hearing showed Ms. Cosyns and the Floyds, through continuing negotiations after the original sales contract was entered into, amended that contract and executed a second one, in order to allow Ms. Cosyns to take back a second mortgage from the Floyds. This was necessary because Mr. Floyd, an author, was short of the necessary down payment pursuant to the terms of the original contract, because his annual royalty payment from his publishers had not been received as the time approached for closing. The second contract was executed to allow for a second mortgage in favor of the seller, Ms. Cosyns, in order to make up the amount owed by the Floyds on the purchase price agreed upon, above the first mortgage amount. The testimony and evidence in the disciplinary proceeding revealed unequivocally that the lending institution, Amerifirst Mortgage Company, was fully apprised of the situation and of the reason for the two contractual agreements. The $24,000 second mortgage in question is even depicted on the closing statement issued by that bank. There was simply no concealment and no effort to conceal any facts concerning this transaction from the lender or from anyone else. The investigation conducted was deficient because the investigator failed to discuss this transaction with the lender or with the purchasers. He discussed the matter with Ms. Sealy-Cosyns and his own deposition testimony reveals, as does his investigative report, that he did not feel that he got a complete account of the transaction from her. She testified in her deposition, taken prior to the instant proceeding, that she indeed did not disclose all facts of the transaction to him because she was concerned that he was attempting to apprehend her in some "legal impropriety". Therefore, she was reluctant to be entirely candid. The fact remains, however, that had he conducted a complete investigation by conferring with the lender and the purchasers, he would have known immediately, long before the Administrative Complaint was filed and the matter prosecuted, that there was absolutely no basis for any probable cause finding that wrong-doing had occurred in terms of Section 475.25(1)(b), Florida Statutes. Thus, the facts concerning the prosecution as to Count III against Pauline Sealy-Cosyns, as more particularly delineated in the findings of fact in the previous Recommended Order, reveal not only that Ms. Cosyns was totally exonerated in the referenced proceeding, but that there was no substantial basis for prosecuting her as to this count at all. Concerning Count V against Ms. Cosyns, it was established through the evidence at the hearing in the disciplinary case that she was merely the listing agent and did not have any part to play in the drafting of the contract nor the presenting of it to the lender. Because there was no evidence adduced to show that she had any complicity or direct involvement in any fraudulent conduct with regard to the transaction involved in Count V of the Administrative Complaint at issue she was exonerated as to that count as well. It is noteworthy here that a statement was made by counsel for the agency, appearing at pages 20 and 21 of the transcript of the proceeding involving the Administrative Complaint, which indicates that the agency, based upon its review of certain documents regarding Counts III and V, before hearing, felt that indeed there might not be a disputed issue of material fact as to Mrs. Cosyns. The agency, although acknowledging that a review of the documents caused it to have reason to believe that it was unnecessary to proceed further against Ms. Cosyns nevertheless did not voluntarily dismiss those counts and proceeded through hearing. Be that as it may, the investigation revealed that Ms. Cosyns acknowledged that she knew that there were two contractual documents involved, but the investigation also revealed that Ms. Cosyns was only the listing agent. The selling agent was Mr. Parks. The investigation revealed through interviews with Ms. Cosyns, Mr. Parks and Mr. Hurbanis, the office Manager of V.I.P. Realty, that Ms. Cosyns, as listing agent, was merely present when the offer from the buyers was communicated to the office manager, Mr. Hurbanis, and ultimately to the sellers, the Cottrells. There was no reason for the investigator to believe that Ms. Cosyns had anything to do with the drafting of the contracts nor with the communication of them to the lending institution involved. That was done by either Mr. Parks or Mr. Hurbanis or by the buyers. The investigation (as revealed in the investigative report) does not show who communicated the contract in question to the lender. The investigation was simply incomplete. If the investigator had conferred with the buyers, the sellers and especially the lender, he could have ascertained-whether the lender was aware of all the facts concerning this transaction and whether there was any reason to believe that Ms. Cosyns had anything to do with the arrangement and the details of the transaction. It was ultimately established, by unrefuted evidence at hearing, that indeed Ms. Cosyns did not have anything to do with the transaction, nor the manner in which it was disclosed to the lender. The fact that she was aware that two contracts had been prepared did not give a reasonable basis for the investigator to conclude that she had engaged in any wrong-doing. The report of his interviews with Ms. Cosyns, Mr. Hurbanis and Mr. Parks, as well as Donna Ross, does not indicate that he had a reasonable basis to conclude that Ms. Cosyns had engaged in any fraudulent conduct with regard to the transaction, including the conveyance of a bogus contract to the lending institution involved, nor for that matter, that Mr. Hurbanis or Mr. Parks engaged in such conduct. In order to ascertain a reasonable basis for concluding whether Ms. Cosyns was involved in any wrongful conduct, he would have had to obtain more information than he did from these people or confer with the lender, the buyer or the seller, or all of these approaches, before he could have a reasonable basis to recommend to the prosecuting agency that an Administrative Complaint be filed against her concerning this transaction. In fact, he did not do so, but the Administrative Complaint was filed and prosecuted through hearing anyway, causing her to incur the above-referenced attorney's fees. It thus has not been demonstrated that there was any substantial basis for the filing and prosecution of Count V of the Administrative Complaint against Ms. Cosyn. Thus she is entitled to the attorneys fees referenced above with regard to the prosecution of the Administrative Complaint in question.
The Issue By Administrative Complaint dated February 20, 1991 and filed with the Division of Administrative Hearings on April 23, 1991, the Department of Professional Regulation, Division of Real Estate, alleged that Respondent had obtained a real estate license by means of fraud in that Respondent had a prior criminal charge and 1976 conviction in New Jersey and had not disclosed same in his July 30, 1990 application for licensure as a real estate salesman, contrary to and in violation of Subsection 475.25(1)(m) F.S.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints against real estate licensees pursuant to the laws of the state of Florida, in particular Section 20.30 F.S. and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate broker in the state of Florida, having been issued license number 0566757 in accordance with Chapter 475, F.S. The last license issued was as a nonactive salesman, in care of 380 Mercers Fernery Road, DeLand, Florida 32720. On his July 30, 1990 application, Respondent made a sworn application for licensure as a real estate salesman with the Petitioner. Question No. 7 of the July 30 application read, in pertinent part, as follows: 7. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? Under oath, Respondent answered "no" to the foregoing Question No. 7. Thereafter, Petitioner based this instant prosecution on a series of loose pages which purported to be a report from the U.S. Department of Justice, Federal Bureau of Investigation (Petitioner's Exhibit B). This item is not a business record of the Petitioner, and Petitioner has shown no reason this printed hearsay should be admitted and considered. Consequently, it has not been admitted or considered. Respondent was interviewed by Petitioner's investigator. The investigator, Mr. Miller, testified concerning his interview of Respondent, but nothing in their conversation constituted an "admission of a party opponent." Nor was anything said in that conversation sufficient to supplement or explain any other testimony or exhibit. See, Section 120.58(1) F.S. Likewise, the conversation did not even support the allegations of the Administrative Complaint. Respondent's testimony at formal hearing was disjointed and inconclusive but to the general effect that at some time he had been arrested in New Jersey in connection with a burglary of his dwelling and a subsequent police search thereof which produced a cache of marijuana. He denied telling a deliberate lie on his real estate application and stated he simply could not recall anything further about the New Jersey incident which he described.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter a Final Order dismissing with prejudice the Administrative Complaint. DONE and ENTERED this 27th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1990.
Findings Of Fact At all times material hereto, Respondent has been a licensed real estate salesman in the state of Florida having been issued License No. 0341212. The last license issued to Respondent is delinquent, and Respondent's license is in an involuntary inactive status. On or about October 28, 1986, the Respondent, while holding a delinquent involuntary inactive license as a salesman in the employ of KSP Real Estate Corporation and Mortgage Services (hereinafter "KSP"), did prepare an offer to purchase (a sales contract) on behalf of Emma L. Brown, Mary L. Howard and Betty F. Howard, as purchasers, for certain real property which was listed for sale with Lucy Charles of Homes by Charles of South Florida. Respondent received in trust $500 as an earnest money deposit which was to be placed in the KSP escrow account. In connection therewith, Respondent represented in the sales contract that, as president of KSP, he was acting as an escrow agent and that the $500 was to be held in escrow pending the outcome of the transaction. KSP is not and has not been a corporation registered as a broker with the Department of Professional Regulation, Division of Real Estate. Although the contract called for a closing within 120 days from the delivery of the abstract, the transaction did not close. At no time was the $500 placed in a KSP escrow account as was represented in the sales contract Respondent prepared. Respondent expected to be paid all or part of $2,640 as compensation for his services, calculated as 3% of the sales price of $88,000, as reflected in the sales contract. Respondent prepared and presented the sales contract offer to Lucy Charles of Homes by Charles representing himself to be a real estate broker. The purchasers had previously submitted an offer on the same property through Rickenback Associates, Inc. That offer was not contingent on FHA financing and on the purchasers refinancing their current home. When they showed that offer to their long-time friend, the Respondent, he prepared the sales contract in question in an attempt to re-negotiate the purchasers' then- outstanding offer so they could obtain the terms they wanted which had not been included by Rickenback Associates, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of Counts I and II of the Administrative Complaint and suspending Respondent's real estate salesman license for a period of six (6) months. DONE and RECOMMENDED this 15th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 15th day of March, 1988. COPIES FURNISHED: Darlene F. Keller, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth A. Ratliff 813 Northwest 107th Street Miami, Florida 33168 James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Holly Sanders is licensed by the Department as a real estate broker, having been issued license number 0324563. In June, 1992, Ms. Sanders and Loren L. and Rose Thompson entered into an agreement whereby Ms. Sanders would have the exclusive right to rent an apartment owned by Mr. and Mrs. Thompson. This apartment, unit A-2012 in Brickell Place Condominium, Phase II, was located across the hall from the apartment in which Mr. and Mrs. Thompson resided. Ms. Sanders visited Mr. and Mrs. Thompson periodically to discuss matters relating to the rental, and she grew very fond of Mrs. Thompson. The tenant leasing apartment A-2012 did not intend to renew the lease when it expired in the summer of 1993. Ms. Sanders offered to purchase the apartment for $125,000, a figure which she based on the value of the property used to calculate the ad valorem tax.1 Ms. Sanders prepared a Contract for Sale and Purchase, dated August 16, 1993, reflecting a contract sales price of $125,000, to be paid in cash at closing. Mrs. Thompson retained Richard Olsen, an attorney, to represent her and her husband in the transaction.2 On August 19, 1993, Ms. Sanders, Mr. Olsen, and Mr. and Mrs. Thompson met in the Thompsons' apartment. At the time, both Mr. and Mrs. Thompson were incapacitated. Mrs. Thompson suffered from multiple sclerosis and was in a wheelchair.3 Mr. Thompson was bedridden; he had suffered a stroke and needed full-time care. Both Mr. and Mrs. Thompson are retired attorneys. At the August 19 meeting, Mr. Olsen examined the contract Ms. Sanders had prepared and went over the terms and conditions with Mr. and Mrs. Thompson,4 including the $125,000 contract price and the fact that it was to be a cash transaction. Neither Mr. Thompson nor Mrs. Thompson indicated any dissatisfaction with the terms of the contract. After Mr. Olsen went over the contract, Mr. and Mrs. Thompson and Ms. Sanders signed either four or five originals in his presence. Ms. Sanders gave one duplicate original executed contract to Mr. and Mrs. Thompson5 and one duplicate original to Mr. Olsen. She kept the remaining duplicate original executed contracts. Ms. Sanders did not make any photocopies of the contract. Ms. Sanders was aware that the condominium association had a right of first refusal on the apartment and that she had to be approved by the association in order to purchase the apartment.6 Ms. Sanders personally delivered an application and one of the duplicate original executed contracts showing a contract price of $125,000 to Consuelo Boet, the administrative assistant in the office of Arnold Rabin, the Brickell Place building manager. Ms. Boet did not examine the documents when they were delivered by Ms. Sanders but put them directly into a file containing other applications pending approval. When all of the required documents for apartment A-2012 had been received, Ms. Boet gave them to Mr. Rabin but, again, did not examine the contract. A Certificate of Approval dated October 18, 1993, indicates that the condominium association approved Ms. Sanders as purchaser of the apartment; the contract sales price was not included in this document. Mr. Olsen visited the Thompsons' apartment several times between the time the contract for sale was executed on August 19 and the time the transaction closed on October 20, 1993. The purpose of these visits was to locate the documents relating to Mr. and Mrs. Thompson's purchase of apartment A-2012 in 1988. They had extensive real estate holdings throughout the world, and Mr. Olsen went through many boxes of files trying to locate the title documents needed for the closing. Ms. Sanders was present during each visit Mr. Olsen made to the Thompsons' apartment prior to the closing. During one visit, Mr. Olsen was present when Ms. Sanders asked Mrs. Thompson if she would be willing to accept a $75,000, one-year mortgage on the property. Mr. Olsen discussed this proposal with Mrs. Thompson and explained to Mrs. Thompson that the mortgage Ms. Sanders was proposing would result in her receiving only $50,000 when the transaction closed and then two payments of $50,000 and $25,000, respectively. Mrs. Thompson told him she would accept the mortgage but did not want Ms. Sanders to pay interest. She refused to change her mind even though Mr. Olsen told her that it would not be in her best interest to take a non-interest-bearing note. Chicago Title Company was the closing agent for the transaction, and the closing took place at their offices on October 20, 1993. Mr. Olsen was present at the closing on behalf of the Thompsons, who were not able to attend. At closing, both Mr. Olsen, on behalf of Mr. and Mrs. Thompson, and Ms. Sanders signed the HUD-1 Settlement Statement, which was computed using a purchase price of $125,000. The cash payable to the Thompsons at closing is shown on the settlement statement as $46,289.48, and the statement reflected a purchase money mortgage for $75,000, as well. Ms. Sanders executed a mortgage and note in the amount of $75,000 dated October 20, 1993. These documents were prepared by Mr. Olsen, and he notarized them on October 20. The terms of the mortgage note called for a payment of $50,000 on April 19, 1994, and a payment of $25,000 on October 19, 1994; the note did not bear interest. Mr. Olsen had one original set of the closing documents bound in a legal-sized folder; the documents included an original signed closing statement, a copy of the deed, and a copy of the mortgage and note. He delivered this folder to Mrs. Thompson and explained the documents, specifically going over the closing statement with her. Mrs. Thompson expressed no dissatisfaction with the transaction or the amount of money she received at closing. Mr. Olsen believes that, during the time he represented her, Mrs. Thompson was fully aware that the contract sales price was $125,000 and that she had taken a mortgage instead of all cash. At some point, the association's Certificate of Approval of Ms. Sanders' purchase and a copy of the HUD-l Settlement Statement were placed in the file maintained by the association for apartment A-2012. Ms. Boet does not recall when the documents came into the office or who provided the copy of the settlement statement. She did not examine the documents at the time she placed them in the association file for apartment A-2012. However, when Mr. Rabin reviewed the file some months after the closing, it contained a copy of an HUD-1 Settlement Statement which had obviously been altered in several places to show a contract sales price of $185,0007 and a copy of a Contract for Purchase and Sale showing a contract price of $185,000.8 The file did not contain a duplicate original executed Contract for Sale and Purchase. The greater weight of the evidence in this case supports Ms. Sanders' contentions that the Contract for Sale and Purchase of apartment A-2012 in the Brickell Place Condominium, executed on August 19, 1993, by Loren L. and Rose Thompson, specified a contract sales price of $125,000, to be paid in cash, and that Mrs. Thompson accepted a one-year note and mortgage on the property in the amount of $75,000 and $50,000 in cash in lieu of $125,000 in cash. Furthermore, the uncontradicted evidence establishes that Ms. Sanders delivered a duplicate original executed contract to Ms. Boet as part of her application to the condominium association for approval of her purchase of the apartment. The uncontradicted evidence also establishes that, some months after the October 20, 1993, closing on the apartment, Mr. Rabin reviewed the association's file and found that it contained a copy of a Contract for Sale and Purchase which specified a contract sales price of $185,000 in cash and an HUD-1 Settlement Statement obviously altered to show a contract sales price of $185,000. There is, however, no compelling evidence establishing when the documents were altered or establishing that Ms. Sanders is the person who made the alterations. Therefore, the Department has failed to carry its burden of proving by clear and convincing evidence that Ms. Sanders violated section 475.25(1)(b), Florida Statutes, either with respect to Mr. and Mrs. Thompson or to the Brickell Place Condominium Association.9
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint filed against Holly Sanders. DONE AND ENTERED this 9th day of July, 1996, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1996.
The Issue The issue is whether Respondent provided the Florida Real Estate Commission with false information in his application to take the broker's examination, in violation of Sections 475.25(1)(b)and (l), Florida Statutes, or whether he is guilty of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 457.25(1)(b), and, if so, what penalty should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson on September 27, 1993. On this date, he placed his license with Brokers Realty of Naples, Inc. Respondent has not pursued the real estate profession as his primary business. He has not bought or sold any real estate under his license and has not put any time into it. Respondent's profession is the ministry. He as been a minister for 20 years and has been the senior pastor of Gulf Shore Community Church for five years. Respondent is a member of the Christian Missionary Alliance. In June 1993, Respondent was assigned the responsibility of forming a church in Naples. Respondent's wife was more interested than Respondent in pursuing a real estate career, and Respondent took the course with her more for moral support. While in class, they met a broker with whom they agreed they would place their salesperson's licenses. After receiving their salesperson's licenses, Respondent and his wife placed their licenses under the broker, as they had agreed. However, the broker closed her office after a couple of months. In the meantime, Respondent's wife had met David Bayer of Century 21 Old Naples Realty, Inc. (Century 21). In November 1993, she decided to place her license with Century Respondent agreed that he would do the same. Busy with starting a church, Respondent did not attend to the details of transferring his license. He believed that someone else was doing this for him, but no one did. Respondent's inattention allowed his licensing status to lapse. Unknown to Respondent at the time, his salesperson's license became invalid on November 16, 1993, for lack of an employing broker, according to Petitioner's records. Respondent's license remained invalid until March 31, 1995, when it became inactive, according to Petitioner's records. Respondent's wife later decided to pursue her broker's license. Again for moral support and to help her with preparing for the examination, Respondent agreed that he would also apply for his broker's license. In attempting to obtain the necessary paperwork to take the broker's examination, Respondent discovered in late August 1995 that Petitioner's records had not been updated to reflect the transfer of his license to Century 21. It appears that Respondent was not yet aware of the other above-described impediments to licensure. Trying to update Petitioner's records, Respondent submitted the two forms that are the subject of the present disciplinary proceeding. The first form was a Request for License or Change of Status, which Respondent faxed to Petitioner. Respondent completed the top section of this form, which is to be completed by the licensee. He signed it beside a typed-in date of December 30, 1993, which was the effective date of the transfer of his license to Century 21. Petitioner has not objected to anything in this section. The next section is to be completed by the broker/employer or nonlicensed owner/employer. At the bottom of this section are the words, "Broker or Non-Licensed Owner Sign Here:". Respondent hand-wrote Mr. Bayer's name in what he described as printing, but, on a blurry fax, could be mistaken for a signature for someone unfamiliar with Mr. Bayer's signature. Beside Mr. Bayer's name "December 30, 1993" was typed in. Petitioner has objected to Respondent's undisclosed signing of Mr. Bayer's name on this form. On September 11, 1995, Petitioner received another Request for License or Change of Status form. The bottom section of this form was signed by Mr. Bayer at the bottom in script considerably different from that of the earlier form. The top section of this form is filled out exactly as the earlier form, with Respondent's signature beside the typed-in date of "December 30, 1993." Petitioner objected to the typed-in date because it was nearly two years prior to the date that the form was filed. As to the second objection, there is nothing in the record to suggest that Respondent was trying to file paperwork with Petitioner in 1995 that was misdated so as to suggest that it was filed two years earlier. The 1993 date was the effective date of the license transfer. The form does not state "Date Signed"--only "Date." There is no place on the form to show an earlier effective date. Not only was Respondent not trying to mislead Petitioner with the date on the form, but it is almost impossible to find that the date was misleading. There is no way to conceal that the forms were filed in September 1995, not December 1993. Respondent even sent the second form certified, return receipt requested, so as to document further that the form was sent in 1995. In the absence of another place on the form to show the effective date of the transfer, Respondent's use of the date line to show the effective date was reasonable and not misleading. Thus, Respondent did not intend to mislead with this date entry, and no one could reasonably have claimed to have been misled by this date entry. Interestingly, Petitioner did not claim that Respondent's first form, which had a similar date entry, was misleading as to the date. As to the first form, Petitioner's objection is more substantial: Respondent signed Mr. Bayer's name without disclosing that he was doing so. Mr. Bayer testified that he would have signed the form in December 1993 or September 1995 because Respondent in fact had transferred his license to Century 21 in December 1993. The record does not establish that Mr. Bayer authorized Respondent to sign the form before he did so, but the record clearly established that he ratified the signature. A few days after the first form was faxed, Mr. Bayer signed a form and sent it to Petitioner. Clearly, Respondent's handling of the signature of Mr. Bayer does not rise to misrepresentation, false promises, or dishonest dealing by trick, scheme, or device. There was not fraudulent intent. The question is closer as to whether Respondent's handling of the signature rises to the level of making or filing a false report or record which the licensee knows to be false. Given the standard of evidence imposed upon Petitioner, there is considerable doubt whether the factual basis supporting a finding that Respondent signed as the agent of Mr. Bayer, who immediately ratified the act to eliminate any doubt as to its authorization, is sufficient to find that Petitioner has proved by clear and convincing evidence that Respondent knowingly made or filed a false report or record. However, the parties stipulated to a violation of at least one count, and the administrative law judge accepted the stipulation.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order either dismissing the Administrative Complaint or finding Respondent guilty of knowingly making or filing a false record or report and issuing a notice of noncompliance. DONE AND ENTERED this 27th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1998. COPIES FURNISHED: Steven D. Fieldman, Chief Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jeanette Martinez Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400 Naples, Florida 34103 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
