Findings Of Fact The Respondent, John L. Nuccitelli, is a licensed real estate broker, having been issued License Number 0064764, and he was so licensed at all times material to the issue in this proceeding. On August 20, 1979, an arrest warrant was issued in Lancaster County, South Carolina, directing that the Respondent be arrested on the charge of possession of marijuana with intent to distribute, in that he flew into the Lancaster County Airport in a Douglas DC4 four engine aircraft with approximately 131 bales of marijuana. The Respondent was subsequently indicted for this offense, and on December 4, 1979, he was found guilty in the Court of General Sessions in and for Lancaster County, South Carolina, of the crime as charged. Thereafter, the Respondent was sentenced to imprisonment for a term of five years, and a fine of $5,000, with the provision that the prison term would be reduced to probation for five years upon payment of the $5,000 fine. On July 29, 1982, the Respondent having paid the fine imposed and having fulfilled the conditions of his probation, the Court entered its Order relieving the Respondent from the sentence previously imposed, and discharging him from further probation. The Respondent had not been involved with the law prior to the incident in question, and has not been so involved since this incident. He realizes that he made a serious mistake, one which has adversely affected both himself and his family. He is the sole support of his wife and five children, and he has only done work in the real estate field since leaving the Air Force. The Respondent and his wife have been married eight years. They have two children of their own, and three children by a prior marriage. The Respondent is a caring husband and father. He is trusted by those persons in the community who know him.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that License No. 0064764 held by the Respondent, John L. Nuccitelli, be REVOKED. THIS RECOMMENDED ORDER entered on this 1st day of November, 1982. WILLIAM B. THOMAS, 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 1st day of November, 1982. COPIES FURNISHED: John L. Huskins, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Richard J.R. Parkinson, Esquire 603 East Central Boulevard Orlando, Florida 32801 William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, William James Barbour, is a licensed real estate salesperson in the State of Florida, having been issued license number 0631568. On September 28, 1995, Respondent filed an application (dated September 22, 1995) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent responded to the question by checking the box marked "Yes," and attached documents relating to his arrest on June 17, 1992, and conviction on March 1, 1993, for the offense of driving under the influence. The documents further revealed that Respondent's driving privilege was revoked by the court for a six-month period (nunc pro tunc to June 17, 1992), and that by August 9, 1992, he had successfully completed the Broward County Court Alcohol and Substance Abuse Program. Respondent's driving privileges were restored February 25, 1993. No other offenses were disclosed on the application. The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department discovered that on March 4, 1993, in the County Court, Dade County, Florida, Respondent was arraigned on a charge of simple battery (date of occurrence January 9, 1993), a first degree misdemeanor, proscribed by Section 784.03, Florida Statutes. Respondent entered a plea of not guilty; however, on March 30, 1993, the court, following hearing, found Respondent guilty of the charge, but withheld adjudication. Respondent was subsequently ordered to pay $2,536 in restitution, $105.00 in court costs, and participate in a pre-trial diversion anger control class. After receipt of the foregoing information, the Department apprised Respondent of its discovery. Respondent addressed the Department's concerns by letter of September 5, 1997, as follows: After our conversation on this morning of 9-5-97 I am aware that I filled out the application for Real Estate incorrectly. At the time, my understanding to the question about an arrest or convictions on the application, was for a felony. I have had arrest but all of the 3 I've had were misdemeanors. One was for a DUI. In June of 1992 where I was found guilty and lost my Drivers License for 6 months & had to attend a counter measures class. I completed all required classes and now hold a safe Driver's Lic. I had two other arrest[s]. Both were for battery. I had to attend an advocate program for violence. I completed all classes. I believe that ajudication [sic] was witheld [sic] for both charges. I am sorry for any inconvenience that I have caused over this matter, and hope that I can continue to keep my Real Estate License. Thereafter, on November 20, 1997, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid finding of guilty to the crime of battery, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against his license. According to the complaint, the disciplinary action sought . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 1 At hearing, Respondent offered the following explanation for his response to item 9 of the application or, stated differently, for his failure to disclose the charge of battery for which he had been found guilty (albeit adjudication being withheld): . . . Your Honor, at the time that I had filled out the application -- okay, right before that I had been arrested for a DUI. That's one thing that I did list in the application. But at the time of the application, you know, the question had stated: If you had ever been arrested -- anyhow I answered yes to the question. But when it said to list the details, my first understanding of the question was that it was for felonies only, but the charges that I had -- I had a charge for a fight, actually two times I was arrested for fighting. And I didn't know what the outcome of the charge was to be able to list it, you know, in detail. So when I answered the question I answered yes, you know, believing that the Real Estate Commission would, you know, because it said at the end of the question your answer would be checked with state, local, and federal officials, and I didn't know the detailed charges that I was -- that were placed upon me. So I just answered the question yes figuring that they would find what the charges were. I was not trying to hide anything from the Real Estate Commission. I had great feeling that they were going to find out everything that I had been arrested for. (Transcript, at pages 4 and 5.) And, on cross-examination, Respondent responded regarding his response to the application question, as follows: Q. And in attaching materials you listed a conviction for driving under the influence charge? A. Right. Because at the time I had understood that the question was for a felony, but even still I answered it yes, because, you know, I knew the other ones were like misdemeanors or something, but I didn't know what degree or any of that, you know, so I answered yes. And the only thing I had attached was the DUI because that's the only thing that I even had paperwork on. (Transcript, at pages 7 and 8.) Apart from the foregoing incidents, Respondent has had no other involvement with the criminal justice system. Here, Respondent's explanation for his failure to disclose the battery charge on his application is wanting in substance, and does not detract from the conclusion that the application he submitted was false. In so concluding, it is observed that Respondent's answer to the question posed by the application (given the information requested and his attestation) purported to divulge every offense for which he had "been convicted . . . , found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Under such circumstances, it cannot be subject to serious debate that, when the application was submitted, Respondent knew he provided false or misleading information regarding his criminal record. In concluding that Respondent knowingly and intentionally provided false or misleading information on his application, his explanation that he lacked paper work on the battery arrest and assumed the Department would uncover the charge upon a background check, has not been overlooked; however, such explanation does not detract from the conclusion reached. Indeed, it is inherently improbable, given the proximity in time of the offenses (Respondent was convicted of DUI on March 1, 1993, and arraigned on the battery charge on March 4, 1993), that Respondent would be able to relate the particulars of the DUI conviction on his application, but not one iota of information regarding the battery charge. Rather, Respondent's failure to even mention the battery charge on his application renders his claim of reliance on the Department's investigation to uncover it ring hollow.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes, as alleged in the Administrative Complaint. It is further RECOMMENDED that for such violation, the Final Order revoke Respondent's license. DONE AND ENTERED this 15th day of September, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 15th day of September, 1998.
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
Findings Of Fact Based upon my observation of Respondent, and his testimony during the proceeding herein, the documentary evidence received, including a prehearing stipulation executed by counsel for the parties and the entire record compiled herein, the following relevant facts 1/ are found. Respondent, Stewart Sax, is a real estate salesman who holds License No. 0347241. Respondent is presently employed by Choice Rentals and Realty Corporation, 3365 North Federal Highway, Fort Lauderdale, Florida. The prosecution of this matter was initiated by Petitioner against Respondent based on an Administrative Complaint filed herein, signed August 3, 1981. On July 24, 1980, Respondent submitted an application for licensure with the Petitioner. In connection therewith, Respondent answered question No. 6 in the negative by asserting "No." That question reads in total: Have you ever been arrested for, or charged with commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violation), without regard to whether convicted, sentenced, pardoned or paroled? Respondent was first arrested on April 21, 1972, when he was charged with credit card theft in Atlanta, Georgia. At this time, he was approximately 22 years old and was a student at Emory University in Atlanta, Georgia. Respondent pled nolo contendere to the charges and received three years probation and a $500.00 fine based upon this plea. Respondent contends that the credit card belonged to a girl friend's mother and he initially had the right to use that credit card. Respondent was next arrested on January 25, 1974, when he was arrested for credit card theft, public indecency and public drunkenness in Atlanta. The charges on the first two counts were dismissed and Respondent received a 30-day suspended sentence on the public drunkenness charge. Respondent was next arrested on July 24, 1980, in Fort Lauderdale, and was charged with grand larceny and issuing a worthless check. The worthless check charge was nolle prosequi and the grand larceny charge was reduced to petty theft, to which Respondent pled no contest. Respondent was placed on probation for six (6) months; he paid $50.00 court costs and adjudication of guilt was withheld. On July 24, 1980, Respondent was again arrested for driving while intoxicated and with an expired driver's license. No information was issued on the driving while intoxicated charge and Respondent pled no contest to the expired driver's license charge. He paid $25.00 for court costs and adjudication was withheld. Finally, Respondent was arrested on July 30, 1980, and charged with prowling in Fort Lauderdale, Florida. These charges were dismissed. Respondent contends that he was under a great deal of pressure when he submitted his application for licensure and was of the opinion, based on representations of his former counsel, that he did not have to reveal these matters on applications, etc.; that these matters were dropped, and would not follow him in the future. (Prehearing Stipulation) As noted above, the matter was presented based upon a prehearing stipulation, prepared by counsel for the parties whereby Respondent admitted each of the allegations as contained in the Administrative Complaint with explanations for each allegation. Evidence presented at the hearing indicated that, except for the Public drunkenness charge, all remaining charges were either nolle prosequi, dismissed without any information being filed or adjudication was withheld and sentences were probated. Respondent has enjoyed success in his field as a real estate salesman since he has been licensed. Respondent as far as the record reveals, has not had any disciplinary charges brought against him since he has been licensed as a real estate salesman. Other professionals in the area have a high regard for Petitioner, both personally and professionally as a real estate salesman. Respondent is a highly intelligent real estate salesman who, it can be assumed, understood the application for licensure which he executed to become a real estate salesman. Based on the admissions contained in the prehearing stipulation and Respondent's testimony, his failure to truthfully answer all questions on his application, he (Respondent) violated the provisions of Chapter 475.17(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's real estate License No. 0347241 be REVOKED. That Respondent be afforded an opportunity to reapply for a license as a real estate salesman and that pending a decision by the Board on Respondent's reapplication for licensure, the Board spend the revocation referred to in the Recommendation above. RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.
The Issue Whether Petitioner should be disqualified from taking the real estate salesman license examination based on his alleged failure to disclose on his licensing application a prior arrest and conviction for possession of marijuana.
Findings Of Fact On December 19, 1980, Schwartz filed with the Board his application for licensure as a real estate salesman. In answer to the application's Question No. 6: "Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations) without regard to whether convicted, sentenced, pardoned or paroled?" (R-1), Schwartz answered, under oath, "Yes." If an applicant answers "Yes", the application asks for details, including the outcome. Schwartz responded: 2.28.69 Possession Marijuana Broward Cty. Sentenced 31 months, Released 4/30/71, No Further Record. (R-1.) He further explained his answer in a letter attached to the application: Sirs: In regard to question #6, I was arrested 2.28.69 in Broward County for possession of a small quantity of marijuana. Sentenced by Judge Robert Tyson in Broward County Criminal Court, Ft. Lauderdale, Fl in June of that year to two years, seven months. Released M.C.R. on 4/30/71. No problems since. H. Jeffrey Schwartz (R-1.) As part of the application, Schwartz executed an affidavit which provides in part: The above named, and undersigned, applicant for licensure as a real estate salesman, upon being duly sworn, deposes and says that he is the person so applying, that he has carefully read the foregoing application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete, as h[is] knowledge information and records permit, without any evasions or mental reservations whatsoever, . . . (R-1.) In answering Question No. 6, Schwartz failed to disclose that he was indicted, arrested, and subsequently convicted of felonious possession of marijuana by the Hustings Court of the City of Richmond, Virginia, on January 31, 1968. Court records indicate that Schwartz, then 19 years old, pled not guilty to the charge; that he was represented by counsel during trial; and that upon hearing the evidence the court found him guilty and returned him to jail pending a pre-sentence-investigation. Subsequently, on March 18, 1968, the court suspended imposition of sentence "during. . .good behavior or until further order of this Court" (R-4), ordered him to pay costs of court, and placed him on supervised probation for an indefinite period. (R-4.) Schwartz then moved to Florida. In February, 1969, he was convicted of felonious possession of marijuana by the Circuit Court of Broward County and sentenced to 31 months at hard labor. On April 30, 1971, after serving his sentence, he was extradited by Virginia authorities on grounds that his Broward County conviction violated the "good behavior" condition of his earlier suspended sentence. After a hearing, at which Schwartz was again represented by counsel, the Hustings Court found he had not violated the provisions of his 1968 suspended sentence, and released him. At that time, Schwartz was 22 years old. (Testimony of Schwartz; R-4.) The Board does not contend that these two prior criminal convictions occurring over 12 years ago render him unqualified for examination and licensure as a real estate salesman. Since that time, Schwartz has been a law-abiding and responsible individual. He has conducted research and performed feasibility studies for various commodity marketing firms, and has gained the respect and confidence of his employers. On March 25, 1981, his civil rights were restored- -except to possess or own a firearm--by order of the Governor and Cabinet of Florida. (Testimony of Schwartz; P-1, P-2, P-3, P-4.) The Board seeks to deny Schwartz's license application based solely on his failure to fully disclose on the application his prior arrest and conviction for marijuana possession in 1968. Schwartz's defense is that he honestly believed the 1968 offense in Virginia was a juvenile matter, not a criminal offense; and that Question No. 6 on the licensing application did not cover juvenile offenses or adjudications. In reply, the Board acknowledges that Question No. 6 is ambiguous with respect to whether information concerning juvenile offenses is required. It follows that, if Schwartz--rightly or wrongly--believed that his 1968 offense was juvenile in nature, his answer to Question No. 6 was not unreasonable and cannot fairly demonstrate lack of honesty, truthfulness, and good character. (Prehearing Stipulation, Acknowledgment of Board Counsel.) Schwartz's testimony that he sincerely believed his 1968 offense to be juvenile in nature, and thus outside the purview of Question No. 6, is rejected as unworthy of belief. His assertion is uncorroboratcd by any independent evidence and is inconsistent with the effect of the following: The Official Court Records. These records, on their face, indicate that Schwartz was charged with and convicted of a criminal offense in 1968. The Procedures Used to Convict Him. At his 1968 trial, he pled not guilty; was represented by defense counsel--who unsuccessfully moved the court to strike the evidence as insufficient to support a judgment of guilty; and, after being found guilty was returned to jail pending pre-sentence investigation. It is unlikely that a 19-year-old could go through such an experience without realizing that he was being charged with and convicted of a crime. His Extradition and Return to the Virginia Court. His subsequent criminal conviction in Florida led to his extradition and return, under guard, to the Richmond Court of Hustings for alleged violation of probation imposed pursuant to his 1968 conviction. After hearing, where he was again represented by counsel, he was reinstated to probation. It is unlikely that Schwartz, then 22 years old, did not understand--by this second encounter with defense counsel and the Court of Hustings--that his 1968 offense was a crime, and that he had been convicted in a criminal, not a juvenile proceeding. Schwartz's Demeanor and Intelligence. Schwartz's demeanor as a witness showed him to be an articulate and intelligent individual. As a marketing analyst, he is required to conduct research and perform studies upon which others can rely. Such work requires rational investigation and analysis. His ostensible conclusion that the 1968 offense was a juvenile proceeding was not the result of diligent investigation and analysis: it represents a departure from the analytical habit he has developed in the working environment. (Testimony of Schwartz; R-4.) Since Schwartz's assertion that he genuinely believed his 1968 conviction was a juvenile matter is rejected, it follows that his answer to Question No. 6 was incomplete and evasive. With regard to the traits of honesty and truthfulness, it places his character in serious question. To the extent the parties' proposed findings of fact are incorporated in this Recommended Order, they are adopted; otherwise, they are rejected as unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of H. Jeffrey Schwartz for licensure as a real estate salesman be denied, without prejudice to his right to reapply in the future. DONE AND REC0MENDED this 19th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1981.
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 The Respondent is now and has been since about September 9, 1988, a licensed real estate salesman in the State of Florida. She was issued license number 0523257. The last license issued was as a salesman, in care of Hammocks Properties, Inc., 9290 Hammocks Boulevard, #404, Miami, Florida 33196, with a home address of 7390 Northwest 48th Street, Lauderhill, Florida 33319-3401, listed with the Florida Real Estate Commission as of April 10, 1990. Prior to obtaining her initial real estate salesman's license, the Respondent filed an application for licensure as a real estate salesman. In that application the Respondent represented that all the answers and statements in the application were true and correct, and as complete as her knowledge, information, and records permit, without any evasions or mental reservations whatsoever. Question 6 on the application form read as follows: "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?" The Respondent's answer was, "Yes." The second part of Question 6 read as follows: "If you answered "Yes," please state the details including dates and outcome in full. (Use separate sheet if necessary.)" The Respondent's answer to this part of Question 6 was as follows: "I pleaded guilty to a third degree conspiracy, in 1982 in New Jersey involving an insurance claim." By letter dated February 3, 1988, Ms. Ruth Clayton, Supervisor of Application Certification, wrote to the Respondent seeking more details regarding the Respondent's answer to Question 6. By means of an undated letter, which was received by the Florida Real Estate Commission on February 17, 1988, the Respondent replied to Ms. Clayton's further inquiry about her answer to Question 6 on the application. The letter requesting clarification asked the following specific questions: "What was involved? Was it monies, etc? If a monetary value was involved advise us of the value. What was the court's disposition of the matter? Are you on any type of probation or parole?" The Respondent's letter of reply read as follows, in material part: I am replying to your letter of February 3, 1988 with regards to question #6. I was a part owner of a property in New Jersey in 1982 that was damaged. I did not commit any crime, did not make an insurance claim, and received no monetary gain. I was advised by the police without an attorney present to plead guilty to a third degree crime as part of a plea-bargain. This was to save my family from the strain, embarrassment, and expense of a lengthy trial. There was to be no trial and no punishment. I was placed in an Intensive Supervision Program for one year in which my only restriction was not to leave the state of New Jersey without permission. I am not currently, nor was I ever on any type of probation or parole. This is a matter which happened in 1982 in which I signed a document against my interest without knowing the consequences. I was never involved in a criminal matter before, nor after till this date. I am a moral, ethical, law abiding person and have raised five beautiful children. I have been in my own business for the past fifteen years and have never been involved in any litigation. On March 14, 1983, the Grand Jury in Monmouth County, New Jersey, issued a fourteen-count indictment against Frida Koren and others. The indictment alleged that the defendants had committed various crimes in the course of a criminal scheme to set fire to a house owned by the Respondent and her husband. Four of the fourteen courts alleged criminal conduct by the Respondent. On May 12, 1983, the Respondent retracted a plea of not guilty to all counts and entered a plea of guilty to Count 2 of the indictment. The essence of Count 2 was an allegation that the Respondent and the other defendants "... did commit the crime of conspiracy in that they unlawfully agreed with each other to commit the crime of arson, with the purpose of promoting or facilitating its commission...." The caption to Count 2 describes it as a "third degree crime." On October 28, 1983, the Respondent was sentenced to a prison term of 5 years with a minimum parole ineligibility of 2.5 years. By order dated April 17, 1984, the sentence was modified to delete the parole ineligibility clause and to add a fine of $7,500.00. On June 25, 1984, the Respondent was released into the Intensive Supervision Program for a trial period. On January 11, 1985, the Respondent was resentenced into the Intensive Supervision Program for 5 years. By subsequent order, the Respondent was discharged from supervision of the Intensive Supervision Program as of August 9, 1985.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case concluding that the evidence is insufficient to sustain the charge against the Respondent and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of September 1990. MICHAEL M. PARRISH 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 4th day of September 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0448 The following are my specific rulings on the proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraph 1: Rejected as constituting a conclusion of law rather than a proposed finding of fact. (It is an accurate conclusion of law.) Paragraphs 2, 3, 4, and 5: Accepted. Paragraphs 6 and 7: Rejected as irrelevant, because there is no issue in this case regarding the Respondent's citizenship. Paragraphs 8 and 9: Accepted, with some additional facts in the interest of clarity. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Findings proposed by Respondent: The first eight unnumbered paragraphs of findings proposed by the Respondent are accepted. The remaining unnumbered paragraphs of findings proposed by the Respondent are all rejected as constituting argument or proposed conclusions of law, rather than proposed findings. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Dean J. Trantalis, Esquire Arvida Parkway Center 7900 Glades Road Boca Raton, Florida 33434 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 =================================================================
Findings Of Fact Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of February, 1982.
