The Issue Whether Petitioner's application for licensure as a real estate sales associate should be granted or denied.
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: Respondent is the State of Florida entity responsible for certifying applicants seeking to qualify under Chapter 475, Florida Statutes, for licensure as real estate sales associates. On or about April 19, 2006, Petitioner submitted his application for licensure as a real estate sales associate to Respondent. In the application, Petitioner answered "yes" to a background question which asks, in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . . If you answered "Yes," attach the full details including dates and outcome, including any sentence and conditions imposed, on a separate sheet of paper. Petitioner provided information that indicated that he had been convicted of making a false statement to a federal grand jury in Brooklyn, New York, in October 2001. Petitioner spent one month in custody and has three years' supervised release on the federal charge. His federal supervision was terminated in December 2004. In addition, on July 29, 2003, Petitioner was arrested and charged with stealing a MP3 player from a Target department store. He pled nolo contendre to retail petit theft; adjudication of guilt was withheld. For this offense, he served two days in jail, served 270 days' probation, paid fines and court costs, did community service, and went to impulse control class. Petitioner has been employed by The Orlando Sentinel, the daily newspaper in Orlando, Florida, for approximately four years. He delivers newspapers in an affluent residential neighborhood, has access to gated communities, and is aware when his customers are not at home. To some degree, this job has fiduciary implications. His job supervisor holds him in high regard, considers him trustworthy, and would trust him regarding her real estate transactions. Petitioner is a student at Valencia Community College. Petitioner makes a good impression, appears to be contrite, and, for the past several years, has had no criminal involvement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Florida Real Estate Commission, enter a final order denying the application of Petitioner, Shahzad Ahmed, for licensure as a real estate sales associate. DONE AND ENTERED this 2nd day of March, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2007. COPIES FURNISHED: Claudel Pressa, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Daniel Villazon, Esquire Daniel Villazon, P.A. 1020 Verona Street Kissimmee, Florida 34741 Tom Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Nancy B. Hogan, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent Department of General Services should award a contract for carpet installation, in accordance with invitation to bid number 69-360-240- F, to petitioner, to intervenor, or to neither?
Findings Of Fact The parties stipulated in their prehearing stipulation as follows: "1. Respondent's Division of Purchasing advertised for competitive bidding for [a term contract for] carpet installed, bid number 69-360-240-F. "2. On or about April 19, 1990, the Division of Purchasing sent to prospective bidders a revised invitation to bid. [The invitation to bid contained the following language: 7. INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Petitioner's Exhibit number 5. "3. The petitioner did not protest any of the terms and conditions of the invitation to bid within 72 hours of its receipt of the invitation to bid. "4. The petitioner timely submitted its bid pursuant to the above- referenced bid solicitation. "5. The bids were opened on May 16, 1990 and on July 23, 1990 the Division of Purchasing posted the official bid tabulation document. [Petitioner's bid was low.] "6. The Division of Purchasing determined that the petitioner's bid was non-responsive. The stated basis for said rejection was 'PUR 7068 not completed in full.' A check mark had not been placed in the appropriate box in paragraph 8 of said form. "7. Within 72 hours of the posting of the bid tabulation document, the petitioner delivered another PUR Form 7068 to the respondent with the appropriate box in paragraph 8 checked. "8. On July 25, 1990, the petitioner timely filed its Notice of Intent of Protest with the respondent. "9. On August 3, 1990, the petitioner timely filed its Notice of Formal Written Protest and Petition for Formal Hearing. "10. On August 21, 1990, the petitioner filed a Petition of Administrative Determination of the Validity of Unpromulgated Rule challenging the special condition entitled 'Public Entity Crimes' on page four of the invitation to bid. "11. On August 23, 1990, the petitioner's Motion to Consolidate Proceedings was granted." Filling Out Forms The invitation to bid required bidders to submit completed forms PUR 7068 as part of their bids. Joint Exhibit No. 1, p. 4 ("must execute . . . form PUR 7068 . . . and enclose it with your bid") A checklist in the invitation to bid entitled "REQUIRED SUBMISSIONS" listed "PUBLIC ENTITY CRIMES FORM # PUR 7068," and stated: FAILURE TO SUBMIT EACH AND EVERY FORM AND ARTICLE OF INFORMATION REQUESTED ABOVE . . . SHALL RESULT IN DISQUALIFICATION OF THE BID. Joint Exhibit No. 1, p. 2B. The purpose of Form PUR 7068 and bid specifications pertaining to the form was to assure compliance with Section 287.133(3)(a), Florida Statutes (1989). The form PUR 7068 that Jones Floor Covering, Inc. submitted with its bid reads, in its entirety, as follows: THIS FORM MUST BE SIGNED IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ADMINISTER OATHS. This sworn statement is submitted with Bid, Proposal or Contract No. 69-360-240-F for Carpet Installed. This sworn statement is submitted by Jones Floor Covering, Inc. whose business address is P.O. Box 18430 Pensacola, FL 32523-8430 and (if applicable) its Federal Employer Identification Number (FEIN) is 59-0864814 (If the entity has no FEIN, include the Social Security Number of the individual signing this sworn statement: .) My name is R. W. Jones and my relationship to the entity named above is Vice-President. I understand that a "public entity crime" as defined in Paragraph 287.133(1)(g), Florida Statutes, means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or with the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. I understand that "convicted" or "conviction" as defined in Paragraph 287.133(1)(b), Florida Statutes, means a finding of guilty or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entity of a plea of guilty or nolo contendere. I understand that an "affiliate" as defined in Paragraph 287.133(1)(a), Florida Statutes, means A predecessor or successor of a person convicted of a public entity crime: or An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. I understand that a "person" as defined in Paragraph 287.133(1)(e), Florida Statutes, means any natural person or entity organized under the laws of any state or of the Untied States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entity. Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Please indicate which statement applies.] Neither the entity submitting this sworn statement nor any officers, directors, executives, partners, shareholders, employees, members, or agents who are active in management of the entity, nor any affiliate of the entity have been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of the officers, directors, executives, partners, shareholders, employees, members, or agents who are active in management of the entity or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989 AND [Please indicate which additional statement applies.] There has been a proceeding concerning the conviction before a hearing officer of the State of Florida, Division of Administrative Hearings. The final order entered by the hearing officer did not place the person or affiliate on the convicted vendor list. [Please attach a copy of the final order.] The person or affiliate was placed on the convicted vendor list. There has been a subsequent proceeding before a hearing officer of the State of Florida, Division of Administrative Hearings. The final order entered by the hearing officer determined that it was in the public interest to remove the person or affiliate from the convicted vendor list. [Please attach a copy of the final order.] The person or affiliate has not been placed on the convicted vendor list. [Please describe any action taken by or pending with the Department of General Services.] /s/ R.W. Jones R. W. Jones, Vice President Date: May 16, 1990 STATE OF Florida COUNTY OF Escambia PERSONALLY APPEARED BEFORE ME, the under-signed authority, R. W. Jones who, after first being sworn by me, affixed his/her signature in the space provided above on this 16th day of May, 1990." Petitioner's Exhibit No. 3. As the parties stipulated, no check mark, "x" or other symbol had been placed in any blank in paragraph 8. Mr. Jones' testimony that a typist, working from a draft correctly filled out in ink, neglected to copy the crucial "x" went unrebutted. In fact, neither Jones Floor nor any of its officers, directors, managing employees or affiliates have been convicted of a public entity crime since July 1, 1989. Submitted along with Jones Floor's bid was a bid bond in the amount of $5,000 conditioned on Jones Floor's failure to enter into a contract with respondent in accordance with the terms of its bid. Joint Exhibit No. 2, p.5. When R. W. Jones learned that the form PUR 7068 submitted with Jones Floor's bid did not indicate that neither the company, its officers, directors, managing employees nor affiliates had been convicted of a public entity crime since July 1, 1989, he directed that another form be filled out so indicating. On July 25, 1989, this "corrected" form was filled out. Except for the addition of the omitted "X" it was identical in every respect to the first form PUR 7068, including the date: May 16, 1989. Mr. Jones was not placed under oath before executing either form. On October 14, 1989, petitioner had submitted an earlier version of the public entity crime form as part of its bid in response to invitation to Bid No. DGS 89/90-052 issued by respondent's Departmental Purchasing Office, which contracts separately (for departmental needs) from respondent's Division of Purchasing which contracts, as here, in order to establish terms on which all state agencies can procure certain commodities. Until shortly before the bids received in response to invitation to bid No. 69-360-240-F were opened, respondent's Division of Purchasing had allowed bidders for other contracts to cure irregularities in the execution of Forms PUR 7068 (or predecessor forms) after bids were opened. On the "dozen or two dozen" (T.163) occasions when low bidders were afforded the opportunity to correct duly notarized but otherwise irregular forms, after bids had been opened, they availed themselves of the opportunity, except in some four instances. T. 163. Perhaps the policy change disallowing corrections (inspired by a bid protest on the point) did not take place until after May 16, 1990. Branching Out A purpose of the invitation to bid was "to require the bidders to be located in . . . proximity to the locations that would be procuring and installing." T.139. Among the special conditions in invitation to bid No. 69- 360-240-F is one entitled "QUALIFICATIONS," which provides: By signing the Bidder Acknowledgment Form, the bidder certifies that his company is a viable business selling and installing carpet . . . . Joint Exhibit No. 1. A second special condition, entitled "SECTION BIDDING," states: Bidder may condition bid for award in one or more geographic sections depicted on the attached map. Bidder may bid on the section in which his business is located, and the adjacent section(s) only. . . . Joint Exhibit No. 1. On the "attached map," one section (No. 2) intervenes between the westernmost section (No. 1), which includes Pensacola, and the section involved in the present dispute (No. 3), in which Tallahassee is located. Petitioner's Exhibit No. 9. Having "discovered that . . . [he] was limited to two sections [he] could bid in," (T.54), R. W. Jones called Tallahassee and spoke to Vicky Chambers, one of respondent's employees, who told him that a bidder's branch office could meet the location requirement. She did not say "that all you had to do was set up a branch office." T.94. Two days before bids were opened, Jones Floor Covering, Inc. (Jones Floor) leased an office in Tallahassee with "a couple of hundred square feet" (T.107), and furnished it with "a desk . . . a filing cabinet and a few other odds and ends, [perhaps] a typewriter . . ." T.58. The office lacked "a per se telephone," id., and there was no reason to check Jones Floor's Tallahassee voice mailbox on a regular basis. After it was furnished, the office remained locked. A family-owned commercial flooring contractor head-quartered in Pensacola, Florida, petitioner Jones Floor does business not only elsewhere in Florida but also in several other states. "[A] battery of superintendents . . . go to these job sites." T.38. Sometimes superintendents hire locally; otherwise they take crews with them. Outside Pensacola the company "may have a trailer on the jobsite, or a mini-warehouse," id., but Jones Floor has no offices with telephones, other than the main office in Pensacola. On May 1, 1990, Florida State University (FSU) awarded petitioner an $18,848 contract for carpet installation. Petitioner's Exhibit No. 6. Work began on the FSU contract in Tallahassee only after Jones Floor had submitted the bid at issue here. A crew from Pensacola did the work in two discrete two- to-three week stints, finishing on or before August 17, 1990, without using the space petitioner had rented in its attempt to qualify as a bidder for the contract at issue here. Jones Floor has never made any use of its Tallahassee office. Nobody keeps office hours. No employees work out of the office. The office does not have electricity. Jones Floor has never solicited, accepted or conducted any business at the office, and has not advertised it as a business location. Willing and Able Intervenor All Florida Contract Carpets, Inc. filed the second low bid, a responsive bid complete with the requisite forms and accompanying submissions. All Florida Contract Carpets, Inc. has its headquarters in Tallahassee.
Recommendation It is, accordingly, RECOMMENDED: That respondent award the contract, No. 69-360-240-F, to All Florida Contract Carpets, Inc. That respondent be awarded $279 as reimbursement for the court reporter's fees for appearance at final hearing and preparation of the hearing transcript. That, upon payment of $279, any and all procurement protest bonds posted by petitioner and it sureties be discharged. DONE and ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1 through 8, 10, 12, 13, 14, 16 through 20, 22, 23, 24, 25, 27, 28, 29, 31, 34, 35 and 38 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 9, 36 and 37 pertain to immaterial matters. With respect to petitioner's proposed finding of fact No. 15, a duly promulgated rule requires that the form be part of the solicitation. The form itself indicates it is to be submitted with the bid. With respect to petitioner's proposed finding of fact No. 21, the Department is statutorily precluded from awarding a contract to a bidder who has not executed a sworn statement. With respect to petitioner's finding of fact No. 26, he was not sworn when he signed the form. It is immaterial who typed the form. With respect to petitioner's proposed finding of fact No. 30, rejection of the bid did not render it unresponsive or make the bidder irresponsible. With respect to petitioner's proposed findings of fact Nos. 32 and 33, he was not sworn before signing the form. With respect to petitioner's proposed findings of fact Nos. 36 and 37, nothing in the evidence suggested that petitioner relied on respondent's past practice or policy, whatever it was. Respondent's proposed findings of fact Nos. 1 through 23, 28, 31 through 45, 47, 48 and 49 have been adopted, in substance, insofar as material. With respect to respondent's proposed findings of fact Nos. 24, 25, 26 and 27, nothing in the evidence suggested that petitioner relied on respondent's past practice or policy, whatever it was. Respondent's proposed findings of fact Nos. 29 and 30 pertain to immaterial matters. With respect to respondent's proposed finding of fact No. 46, the evidence showed that Jones Floor did not have a viable business location in Section 3 at the time the bids were opened. Copies furnished to: Bruce A. Leinback, Esquire Cummings, Lawrence & Bezina, P.A. 1004 DeSoto Park Drive Tallahassee, FL 32302-0589 Susan B. Kirkland, Esquire and Jim Bennett, Esquire Office of the General Counsel Department of General Services Koger Executive Center Suite 309, Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Keith J. Kinderman, Esquire Post Office Box 647 Tallahassee, FL 32302 Ronald W. Thomas, Executive Director Department of General Services Knight Building, Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him, as modified at hearing, and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, including the parties' prehearing stipulation filed October 21, 2004, the following findings of fact are made: Respondent is now, and has been since October 17, 1988, licensed as an insurance representative in the State of Florida holding 02-16, 02-18, and 02-40 licenses. His licensure identification number is A268617. In 2001, criminal charges were filed against Respondent in Orange County Circuit Court Case No. CR-01-2309/B. On or about February 20, 2002, Respondent submitted, in Orange County Circuit Court Case No. CR-01-2309/B, a verified Petition to Enter Plea of Guilty, which read as follows: My name is Robert Trueblood and I acknowledge that I am the Defendant charged in the above-styled criminal case[]. I am represented by a lawyer, Arthur L. Wallace, III. I wish to withdraw my plea of not guilty and plead guilty to: Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. I understand that each of these counts is a third degree felony and each is punishable by up to five (5) years in the Department of Corrections and a $5,000.00 fine. I have told my lawyer all the facts and circumstances about the charges against me. I believe that my lawyer is fully informed on all such matters. My lawyer has counseled and advised me on the nature of each charge; on any and all lesser included charges; on all possible defenses that I might have in this cause; and all the penalties that might be imposed if convicted.[1] I understand that I may plead not guilty to any offense charged against me. If I choose to plead not guilty, the Constitution guarantees me the right to maintain that plea and (a) the right to a speedy and public trial by jury; (b) the right to see, hear and face in open Court all witnesses called to testify against me and to cross- examine said witnesses; (c) the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor; (d) the right to have the assistance of a lawyer at all stages of the proceedings and to have one appointed for me if necessary; and (e) also the right to take the witness stand at my sole option; and if I do not take the witness stand I understand the jury, at my request, will be told that this may not be held against me. I also understand that by pleading guilty and admitting the truth of the charges against me, I am waiving all of the rights referred to in the above paragraph and the Court may impose the same punishment as if I had ple[]d not guilty, stood trial and been convicted. I know that if I plead guilty there will be no further trial of any kind, which means that by pleading guilty I waive my right to trial. I understand that some of the charges filed against me in this case may have occurred in whole or in part in Florida Counties other than Orange. However, I wish to resolve, in Orange County, all the charges filed in case number CR 01-2309 and do affirmatively waive my right to venue in other counties where the crimes may have occurred. I am 55 years of age. I have gone to school up to and including 5 y[ea]rs [of] college. I am not under the influence of any alcoholic beverage, drug or medicine at the time I sign this plea agreement. My physical and mental health is presently satisfactory. No one has made any promise, assurance or guarantee to me that I would receive any consideration in exchange for pleading guilty other than as set out in this plea agreement. I declare that no one has subjected me to any force, duress, threats, intimidation or pressure to compel or induce me to enter a plea of guilty. I am entering this plea with the understanding that I may serve every day of the sentence I am agreeing to in this plea agreement. Although I may have received advice or opinions as to the potential for some type of early release, I hereby acknowledge under oath that I have not relied upon those opinions or that advice as an inducement to enter this plea. I believe that my lawyer has done all that a competent attorney could to counsel and assist me. He has answered all my questions about this case to my satisfaction and I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME. I understand that if I am not a United States citizen, this criminal proceeding could cause me to be deported to the country of my origin. I understand that if I fail to pay any fines or costs as ordered by the Court, there will be a lien placed against me. I understand that I waive my right to appeal any rulings of the Court previously made in this case except as specifically stated herein. I understand that I have the right to appeal the judgment and sentence of the Court within thirty (30) days from the date of sentence. I understand that any appeal must be in writing. I understand that if I wish to take an appeal and cannot afford an attorney to help in my appeal, the Court will appoint an attorney to represent me for that purpose. I request the Court to accept my plea, knowing that upon it being accepted by the Court that nothing will remain to be done except for the Court to enter its judgment and sentence. I offer my plea freely and voluntarily and of my own accord and with full understanding of all matters set forth in the Information and in this Petition, the Certificate of my lawyer and Plea Agreement which are contained herein. Though I may have been assisted by my lawyer, I certify that the statement and representations herein above made are my own and have not been suggested directly or indirectly by him or anyone else, and that the decision to plead guilty was made by me. I further represent that my attorney has advised me of considerations bearing on the choice of which plea to enter and the pros and cons of such plea, the likely results thereof as well as any possible alternative which may be open to me. I represent to the Court that the plea bargain attached hereto was negotiated by my attorney with my full and complete consent thereto and that the decision to plead guilty was made by me. I fully concur in the efforts of my attorney and agree to the terms of the bargained plea. The Plea Agreement between Respondent and the prosecutor (which was referenced in Respondent's Petition to Enter Plea of Guilty) read as follows: The Defendant, and the State, pursuant to the provisions of Fla. R. Crim. P. 3.171, agree and stipulate to recommend to the Court the following resolution of the above- styled case: Defendant agrees to plead guilty as charged to Count 2 - Sale of Unregistered Security and Count 3 - Sale of Security by Unregistered Agent. The State will stand silent as to the issue of adjudication. The Defendant shall be sentenced to five (5) years of supervised probation with all standard conditions, as well as the following special conditions: The Defendant shall testify truthfully when requested by the State, without the necessity of subpoena, in reference to any and all matters related to the facts and circumstances surrounding the Defendant's charges in this case. The Defendant shall pay restitution in an amount to be determined. The Defendant agrees the amount of restitution owed is not limited to the transactions to which he is entering this plea. Defendant shall pay court costs as directed by the Court. Defendant shall be required to pay $3,5000.00 for costs of prosecution to the Office of Statewide Prosecution, Department of Legal Affairs for the State of Florida. The Defendant shall pay $500.00 to the Florida Department of Law Enforcement and $500.00 to the Office of Comptroller, Department of Banking and Finance for costs of investigation involved in this case. The Defendant shall have no contact, directly or indirectly, with any of the witnesses in this case. [4]. If the Defendant violates any law while awaiting sentencing or if he fails to appear for sentencing as ordered by the Court, the State shall not be bound by this agreement and may recommend any lawful sentence and the Court may impose any sentence permissible under the law. The Defendant shall not be entitled to withdraw his plea of guilty in this case. [5]. The State agrees to nolle prosequi Count 4 - Sale of Unregistered Security, Count 5 - Sale of Security by Unregistered Agent, Count 6 - Sale of Unregistered Security, and Count 7 - Sale of Security by Unregistered Agent. [6]. If the sentence agreed upon in this plea agreement is a departure from the sentencing guidelines, both the State of Florida and the Defendant agree not to appeal this sentence. [7]. Should the Defendant violate his community control or probation, he affirmatively agrees that he shall be sentenced pursuant to the sentencing guidelines. [8]. The Defendant affirmatively agrees not to request that the Court impose a sentence lower than the sentence outlined above. [9]. Both the State and the Defendant understand that the trial judge has the ultimate responsibility for the sentence the defendant actually receives and that the recommendations made above are not binding on the trial judge unless adopted thereby. The Defendant shall not be entitled to withdraw his pleas of guilty in the event that the trial judge imposes a sentence different from that recommended above. On February 20, 2002, after Respondent entered his guilty pleas in Orange County Circuit Court Case No. CR-01- 2309/B to Count 2 (alleging the "Sale of Unregistered Security," in violation of Section 517.07, Florida Statutes) and Count 3 (alleging the "Sale of Security by Unregistered Agent," in violation of Section 517.12(1), Florida Statutes), the court accepted the pleas, withheld adjudication, and placed Respondent on two concurrent five-year terms of probation, with the special condition that he "serve 1 Day[] in the Orange County Jail, with 1 Day[]'s credit for time served." Other special conditions, including those described in the Plea Agreement set out above, were also imposed.2 Respondent failed to notify Petitioner in writing within 30 days after entering his guilty pleas in Orange County Circuit Court Case No. CR-01-2309/B that he had entered the pleas. Respondent has previously been disciplined by Petitioner's predecessor, the Department of Insurance (DOI). By Consent Order issued November 1, 2000, in DOI Case No. 31036-00-AG, Respondent was suspended for a period of three months. The Consent Order approved the parties' Settlement Stipulation for Consent Order, which provided, in pertinent part, as follows: * * * The Department has caused to be made an investigation of the Respondent and other individuals involved in the marketing and promotion of Legends Sports, Inc. As a result of that investigation, the Department alleges that the Respondent induced individuals to invest in Legends Sports, Inc. and represented that the investment was guaranteed by a surety insurer. However, the investment was not a good investment, the purported surety insurer did not exist or was not authorized to conduct business in this state, and the investment resulted in substantial losses to individual investors. The investigation resulted in a multi- count criminal information (hereinafter referred to as the "criminal actions") being filed against Respondent and other Legends Sports agents in the Seminole County Circuit Court in Sanford, Florida, Case No. 98- 4569CFW. Specifically, Respondent was charged with the following felonies: sale of unregistered securities, sale of securities by an unregistered dealer and unlawful transaction of insurance. Respondent has entered or will enter a plea of guilty to lesser included charges which are first degree misdemeanors. As a result of the plea, the Court in the criminal action, among other things, placed the Respondent on probation. As a condition of probation, the Court ordered the Respondent to pay restitution to the individuals who invested in Legends Sports through the Respondent and suffered financial losses as a direct consequence of such investments. The restitution amount represents the commissions received by the Respondent (hereinafter referred to as the "restitution order in the criminal action"). The Court in the criminal action also ordered that a criminal restitution judgment, that is not dischargeable in bankruptcy, be entered for the full amount of the promissory notes sold by the Respondent, unless a judgment has already been entered in that amount in favor of the Receiver for Legends Sports. Respondent denies knowingly misrepresenting the Legends Sports investment. * * * 13. This Settlement Stipulation for Consent Order is subject to the approval of the Insurance Commissioner. Upon his approval, and without further notice, the Insurance Commissioner may issue a Consent Order providing for the following: Incorporation by reference of the terms and conditions of this Settlement Stipulation For Consent Order. Respondent's licensure and eligibility for licensure as an insurance agent within the state are SUSPENDED for a period of three (3) months pursuant to section 626.641(1), Florida Statutes. The suspension shall take effect on 11/1/2000. * * * Approximately a year earlier, by Consent Order issued July 12, 1999, in DOI Case No. 99-CE58350, Respondent was fined $250.00 for failure to comply with continuing education requirements. Respondent's health has deteriorated in recent years. He has "been in the hospital several times with . . . heart [problems]."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order finding Respondent guilty of twice violating Section 626.621(8), Florida Statutes, as alleged in Counts I and II of the Amended Administrative Complaint, and of violating Section 626.621(11), Florida Statutes, as alleged in Count III of the Amended Administrative Complaint, and suspending his licenses for nine months for having committed these violations. DONE AND ENTERED this 7th day of December, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 2004.
The Issue Whether the Petitioner, Francisco Luis Inguanzo (Petitioner), is entitled to have his application for licensure approved.
Findings Of Fact The Petitioner, Francisco Luis Inguanzo, is an applicant for licensure as a resident public all lines insurance adjuster. He filed an application with the Respondent on or about September 20, 2004. The Department is the state agency charged with the responsibility of regulating licensees and applicants for licensure such as the Petitioner. As such, the Respondent must interpret and administer the provisions of Chapter 626, Florida Statutes (2004). The application for licensure includes several questions that applicants must complete. More specifically, applicants must disclose law enforcement records and, to that end, the Department poses the following question: Have you ever been convicted, found guilty, or pled guilty or nolo contendere (no contest) to a felony or crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory or country, whether or not adjudication was withheld or a judgment of conviction was entered? Yes/No The response the Petitioner provided to the foregoing question was in the negative (that is “No”). When the Department reviewed the Petitioner’s criminal history, however, it was discovered that the Petitioner was arrested and pled guilty to carrying a concealed firearm, a third-degree felony. The Petitioner did not accurately disclose the foregoing arrest and conviction Moreover, the Petitioner did not provide a credible explanation for why he failed to accurately answer the application question. The criminal charges against this Petitioner were resolved on September 10, 2002. After pleading guilty, the Petitioner was placed on one-year probation with various terms to be completed. The Petitioner successfully completed the terms of his probation on May 30, 2003. At the time he filed the application in the instant matter, the Petitioner knew or should have known that he had been charged with a serious crime, that he had resolved the criminal case, and that he was no longer on probation. The Petitioner did not fully disclose his criminal record to the Department. The Department’s application form makes it clear that the applicant’s criminal history must be disclosed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a Final Order denying the Petitioner’s application for licensure. S DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2005. COPIES FURNISHED: Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carlos G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Dana M. Wiehle, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Julio R. Ferrer-Roo, Esquire Julio R. Ferrer Roo, P.A. 8360 West Flagler Street, Suite 203A Miami, Florida 33144
The Issue The issue presented is whether Petitioner's application for licensure as a real estate sales associate should be granted.
Findings Of Fact Petitioner Martha L. Socarras is a Hispanic female born in 1970. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate. On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization Service. At the time of her release, she still owed $499,500 in restitution. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding. On January 3, 2005, Petitioner completed her probation and was discharged from supervision. Petitioner filed her application for licensure only a year later. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 13th day of November, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 13th of November, 2006. 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 Michael E. Murphy, Director Division of Real Estate 400 West Robinson Street Suite 802, North Orlando, Florida 32801 Josefina Tamayo, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.
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: The Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes (2001). On or about June 12, 2001, Mr. Parker submitted his application for licensure as a real estate salesperson to the Commission. In the application, Mr. Parker answered "yes" to Question 9, which asks in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . . If you answered "Yes," attach the full details including dates and outcome, including any sentence and conditions imposed, on a separate sheet of paper. Mr. Parker attached to his application the results of a North Carolina criminal records check, which consisted of a cover sheet and three pages. Relevant to this proceeding, the information attached to Mr. Parker's application establishes the following: On May 26, 1994, Mr. Parker was found guilty of misdemeanor larceny; there is no indication that he received a sentence or paid a fine, court costs, or restitution. On June 29, 1995, Mr. Parker was found guilty of driving while impaired; he was sentenced to one year's unsupervised probation and paid either a fine or court costs in the amount of $160.00. On July 8, 1996, Mr. Parker waived trial on a charge of passing a worthless check; he paid either a fine or court costs in the amount of $60.00 and restitution in the amount of $76.30. On July 31, 1998, Mr. Parker was convicted of misdemeanor larceny; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $130.00. On June 12, 2000, Mr. Parker was found guilty of violating a domestic violence protective order; he was sentenced to six month's unsupervised probation and paid either a fine or court costs in the amount of $186.00. On August 6, 2000, Mr. Parker was charged with driving while impaired and driving without a license in his possession; trial was scheduled for February 21, 2001, but no disposition is indicated in the materials Mr. Parker provided. Mr. Parker admits to having driven while impaired in August 2000, but he has not been in trouble since his arrest on this charge. He completed an alcohol treatment program and has not consumed alcohol for one and one-half years. Mr. Parker understands that he has had problems in the past and believes that he has done better in the past two years. He moved to Florida in January 2001 in order to make a new life. At the time of the hearing, he was employed as a server at a restaurant. In that job, he routinely handles up to $1,000.00 in cash each day and always turns the money over to management.
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 denying the application of Robert L. Parker for licensure as a real estate salesperson. DONE AND ENTERED this 26th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 26th day of June, 2002. COPIES FURNISHED: Robert L. Parker 44 Douglas Drive Boynton Beach, Florida 33435 Donna K. Ryan, Esquire Department of Business and Professional Regulation Hurston North Tower 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1772 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Dean Saunders, Chairperson Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint issued against him and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since 1992, licensed as an insurance representative in the State of Florida holding 02- 15, 02-16, 02-18, and 02-40 licenses. In October of 1999, an indictment was filed against Respondent and others in United States District Court for the Southern District of Florida Case No. 99-8145 (Indictment). In Count One of the Indictment, the following was alleged: From at least as early as November, 1993, through on or about September, 1999, the exact dates being unknown, at West Palm Beach, Palm Beach County, in the Southern District of Florida and elsewhere, the defendants JOHN PHILIP ELLIS, SR., ROBERT KOCH, SHARON ALFONSO, MARK KENNEDY, JEFFREY POLLARD, HOWARD RICCARDI, did knowingly, willfully and unlawfully combine, conspire, confederate and agree with each other, and with persons known and unknown to the Grand Jury, to defraud the United States by attempting to impede, impair, obstruct and defeat the lawful government functions of the Internal Revenue Service (IRS) of the Treasury Department in the ascertainment, computation, assessment and collection of revenue: to wit, income taxes. * * * In violation of Title 18, United States Code Section 371. Respondent pled guilty to the crime alleged in Count One of the Indictment. Based on Respondent's guilty plea, he was adjudicated guilty of said crime and, on January 23, 2002, given the following sentence: 21 months in prison, three years' probation following his release from prison, and a $100.00 fine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner issue a Final Order revoking Respondent's licenses pursuant to Section 626.611, Florida Statutes. DONE AND ENTERED this 18th day of November, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2004.
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division of Real Estate was the state agency responsible for the licensing of real estate salespersons and the regulation of the real estate sales profession in Florida. Respondent, Mark T. West, was licensed by the Division as a real estate salesperson on March 3, 1997, upon passage of the salesperson examination, and held license number SL-0647923. Notwithstanding Respondent's testimony that he has not been actively engaged in the practice of real estate, licensure records maintained by the Division reflect that from March 11, 1997 through the present, he has been active as a salesperson with two broker corporations, TRI W Group, Inc., from March 11, 1997 through September 17, 2000, and TRI-W Brokerage Inc., from September 18, 2000 to the date of certification, February 22, 2001. On December 15, 1995, Respondent submitted an application for licensure to the Department of Business and Professional Regulation, Division of Real Estate. His application reflected he was born in St. Petersburg, Florida, on September 20, 1961. Question 9 on the application asks whether the applicant has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. The question indicates it's applicability to any violation of the law of any municipality, county, state, or nation, including traffic offenses other than minor traffic offenses, and requires the applicant to provide details, including dates and outcomes, in full, on a separate sheet of paper. The time period of applicability is not limited. On his application, Respondent, in answer to question 9, indicated "Yes" and listed a violation of failure to yield to a fire engine. No other offenses were reflected on the form, nor was any separate sheet listing other offenses found in the records of the Division. After the application was filed, consistent with its usual practice, the Division conducted a criminal records background check on Respondent which revealed other offenses had been charged against him. On January 17, 1980, Respondent was charged with DWI in Pinellas County. His driver's license was suspended for 90 days, and he was fined. On September 11, 1982, Respondent was charged with a misdemeanor charge of obstructing a police officer in the performance of his duties. Though Respondent claims he did nothing wrong and the police officer was reprimanded for charging him, the fact remains that Respondent pleaded guilty to the charge on December 2, 1982, and adjudication was withheld. On January 13, 1986, Respondent was charged, in two separate cases, with obtaining property by worthless check. Both checks were for $81.90 and, according to Respondent, were given in payment for paint which he purchased to paint someone's home. He claims he was not paid for the job and, therefore, had no funds with which to satisfy the checks he wrote. Respondent pleaded guilty in both cases and was placed on probation in each case along with a requirement to make restitution and pay costs. He was discharged from probation after nine months. Respondent claims that as to all offenses to which he pleaded guilty, he did so upon advice of counsel. Respondent was interviewed regarding his application on January 13, 2000, by an investigator with the Division to whom he indicated at the time that he did not believe he was required to list any offense over ten years in the past. At hearing, however, Respondent modified that answer by indicating his belief the ten-year limitation related only to traffic offenses. Once the Administrative Complaint was served upon Respondent, in his election of rights, he claimed he had listed all the prior disciplinary actions on a separate sheet of paper which he enclosed with the application when it was submitted. He reiterated that claim in a letter to the Division on November 15, 2000, and he persists in that claim as of the date of this hearing. Review of the application in question reveals that Respondent had previously submitted application for licensure in September, 1994, and had failed the examination for licensure on November 11, 1994, and on January 1, April 3, and June 12, 1995. A review of Respondent's investigative file failed to disclose the prior application or whether Respondent had listed his other offenses on that application. He claims he did so, however. Respondent attended real estate school in preparation for taking the licensure exam. He cannot recall, however, whether, at the school, he was taught how to fill out the application and what was required to be on it. However, he admits to having read the application and realizes it had to be accurate and complete. He contends he believed he had complied with the disclosure requirements and signed the affidavit of completeness which appears on the application. Respondent admits that all his difficulties with the law are not listed on the application form itself. He also admits that there is no time limit listed on the application and that the application form, as he submitted it, does not reflect there is an attachment or continuation in any form. No explanation was given by the counsel for the Commission for the almost five-year delay between the filing of the application for examination by Respondent and the filing of the Administrative Complaint by the state.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of a violation of Subsections 475.25(1)(e) and (m), Florida Statutes, placing his license as a real estate sales person on probation for one year under such terms and conditions as the Commission may prescribe, and imposing an administrative fine of $1,000. DONE AND ENTERED this 24th day of May, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2001. COPIES FURNISHED: Juana C. Watkins, Esquire Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Mark T. West 222 145th Avenue, East Madeira Beach, Florida 33708 Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Petitioner's application for a real estate license may lawfully be denied based on her criminal history.
Findings Of Fact The Commission is a state licensing and regulatory agency charged, inter alia, with granting or denying real estate licenses. Certain administrative services are provided to the Commission by the Division of Real Estate (Division) of the Department of Business and Professional Regulation (Department). Ms. Ellis, at the time of the hearing, was a 34-year- old female residing in Tallahassee, Florida. She is currently employed as a legal secretary and has held a commission as a notary public in Florida since 1997. On July 20, 2007, a DBPR 0010-2 Master Individual Application, prepared by Ms. Ellis, was received by the Department. The application sought a real estate sales associate license. In a letter dated August 7, 2007, the Department notified Ms. Ellis that her application was incomplete. Specifically, the letter noted that she had checked the "yes" block on the inquiry addressing criminal matters and requested additional information with regard to her involvement with the criminal justice system. The letter also requested matters, labeled "Questions 2, 3, and 4," that were not relevant to her application. In a letter dated October 23, 2007, Ms. Ellis responded to the demand for additional information. She provided the Department with letters of recommendation written by her father, Tallahassee attorney Vinson Barrett, and fellow legal secretary Adriana Bernstein. The gist of the letters was that she is a good worker, honest, an exemplary mother, trustworthy, and maintains good working relationships with her fellow workers. In a letter dated October 29, 2007, she provided additional documents illuminating her involvement with the criminal justice system. Despite her input, the Commission rejected her application at its November 14, 2007, meeting. Ms. Ellis did not attend this meeting. The Commission recited findings of fact using reference "keys" as follows: CRIMES IN APPLICATION Applicant's criminal record is revealed in application. * * * UNPERSUASIVE TESTIMONY Applicant's testimony or evidence in explanation/mitigation was unpersuasive. CRIMES RECENT Applicant's criminal history is recent in time. PATTERN OF CRIME Applicant's criminal history shows a pattern and practice of criminal behavior over an extended period of time. * * * The Commission made the following conclusions of law: * * * Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181 F.S. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181 F.S. * * * F. Found guilty of a course of conduct or practices which show applicant is so incompetent, negligent, or dishonest that money, property, and rights of others may not safely be entrusted to applicant. 475.25(1)(o), 475.181 F.S. * * * Applicant is subject to discipline under 475.25 (specify), 475.181 F.S. The Commission concludes that it would be a breach of its duty to protect the health, safety, and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families, or personal belongings of the citizens of Florida. 455.201, F.S. A "Summary of Applicants, FREC Meeting: November 14, 2007" prepared for the Commission meeting in Ms. Ellis' case, is inaccurate, and unless read closely and supplemented with additional facts, would cause a reasonable person to believe that Ms. Ellis was convicted of four offenses. In fact, she was found guilty of two offenses, battery and stalking. Although it is apparent that the Commission once had rules in place that perhaps provided guidance in relation to the standards expected of an applicant's behavior, the rules have been repealed and new rules have not be adopted. The events giving rise to the findings recited by the Commission, relate to incidents arising from Ms. Ellis' interaction with law enforcement authorities while a resident of Tampa, Florida. Ms. Ellis moved into Ms. Lisa Nawrocki's home at East 99th Street, in Tampa during the latter part of 1998 with her two children. She and Ms. Nawrocki had a series of disputes with their neighbors. From late 1998 until October 1999, law enforcement was summoned by Ms. Ellis, Ms. Nawrocki, or their neighbors on 30 occasions. On January 31, 1999, Ms. Ellis was arrested for a battery precipitated by a dispute with one of her neighbors. She pleaded not guilty, but was found guilty of battery at a bench trial. She was sentenced on May 26, 1999, to one year of probation and community service. Ms. Ellis was also directed to attend an anger management class. Ms. Ellis alleged to the media that she and Ms. Nawrocki were victims of "hate" crimes. Ms. Ellis asserted to the media that their difficulties with their neighbors arose because she was a homosexual. Ms. Ellis was arrested again on August 25, 1999, as a result of a confrontation with neighbors. The neighbors were witnesses against Ms. Ellis in another case so she was charged with witness tampering. In order to avoid a trial and possible imprisonment, with attendant separation from her children, she pleaded guilty to the lesser offense of stalking and was sentenced to one year of probation on October 27, 1999. Because the latter offense was a violation of probation on the battery offense of January 31, 1999, her probation was revoked. She was sentenced to 30 days in jail. After serving six days in jail Ms. Ellis was released after promising the judge that she and Ms. Nawrocki would move out of their troubled neighborhood on East 99th Street, and relocate to Tallahassee, Florida. Ms. Ellis did in fact move to Tallahassee and has experienced no involvement with the criminal justice system since her move. Her probation, resulting from the battery conviction was successfully completed on March 7, 2000. Her probation resulting from the stalking charge, which was continued subsequent to her release from confinement, was successfully completed on May 15, 2001. All of the charges resulted from the neighborhood dispute that began late 1998 and ended with her departure from her neighborhood early in November 1999. There is no record of Ms. Ellis' involvement with the criminal justice system before or since these events. The period of the neighborhood dispute is insufficiently long to be termed as "a pattern and practice of criminal behavior over an extended period of time." Ms. Ellis' unrebutted testimony at the hearing was that since the end of 1999, she has been employed as a legal secretary in Tallahassee. Ms. Ellis testified that she works with confidential attorney-client matters and that she has maintained the accounts of law firms. Ms. Ellis' testimony at the hearing is supported by the written evidence of record, including a letter penned by Attorney Vinson Barrett, who stated that she was honest and trustworthy. Her testimony is deemed credible.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission withdraw its Notice of Intent to Deny the Application of Dawn J. Ellis, if she is otherwise qualified, that the Commission certify to the Department of Business and Professional Regulation that Dawn J. Ellis has satisfied the applicable statutory and rule criteria for licensure as a real estate sales associate. DONE AND ENTERED this 25th day of March, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of March, 2008. COPIES FURNISHED: Dawn J. Ellis 3409 Cedarwood Trail Tallahassee, Florida 32312 Garnett Chisenhall, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Thomas W. O'Bryant, Jr., Director Division of Real Estate Department of Business and Professional Regulation Suite 802 - North Tower 400 West Robinson Street Orlando, Florida 32801 S. W. Ellis, Chairman Florida Real Estate Commission Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented is whether Petitioner James Joseph Richardson has met his burden of proving actual innocence, thereby entitling him to compensation under the Victims of Wrongful Incarceration Compensation Act.
Findings Of Fact On October 25, 1967, Petitioner's wife prepared a breakfast of grits for their seven children. In a separate pot she prepared the children's lunch of beans, gravy, rice, and hogs head meat. She also fried some fresh chicken which she used to make sandwiches for her and Petitioner's lunch. She and Petitioner then left to get a ride to the grove where they worked picking fruit. It was their routine for Petitioner's wife to cook the food. The eldest child, eleven-year-old Betty Jean Bryant, would later serve it to all the children after the Richardsons left for work. It is not clear whether the children actually ate their breakfast grits that day. The school-age children went to school while the younger children remained at home. It was the routine for Petitioner's neighbor Betsy Reese to look after them. Petitioner's family and Betsy Reese and her children lived in the same structure, assumedly similar to a duplex. There was a common porch across the front. There was also a shed in the back yard. The school-age children returned to the home at lunchtime. Reese divided the food in the second pot into seven equal portions, and the children ate lunch. Right after the children returned to school after lunch, they began exhibiting terrible symptoms, such as leaking from their orifices, twitching, and rigidity. Teachers began grabbing the Richardson children and rushing them to the hospital. One of the teachers, knowing there were younger children at home, drove to the Richardson home. Those children were on the shared porch, displaying the same symptoms. Reese was sitting on the porch, holding one of the children. The teacher took them to the hospital. Petitioner and his wife were summoned to the hospital. Six of the children died that same day, and the seventh child died early the next morning. At the hospital, medical personnel did not know what substance was causing the illness and deaths. Sheriff Frank Cline went to the Richardson home and conducted several searches of the home and the shed attempting to find what had poisoned the children. When Petitioner and his wife arrived at the hospital, Cline obtained from Petitioner the key to the refrigerator and searched again. The next morning Reese and Charlie Smith, who was described as the town drunk, found a bag of parathion, a highly- toxic insecticide, in the shed behind the house. Cline and his deputies had searched the shed approximately four times during the day the children became sick and Cline had searched the shed by himself late that night, and no bag of parathion had been seen by them. It was determined that parathion was present in the pot the grits were cooked in, the pot the lunch was cooked in, the frying pan the chicken may have been cooked in, flour, corn meal, sugar, and other substances found in the refrigerator. It was also determined that parathion is what killed the children. Petitioner had a key to the refrigerator as did his wife. Indications are that a third key was left on the refrigerator for the babysitter's use. Petitioner was tried for the first degree murder of the eldest child Betty Jean Bryant and was convicted. The jury did not recommend mercy, and he was sentenced to death. His conviction was reviewed by the Supreme Court of Florida. Richardson v. State, 247 So. 2d 296 (Fla. 1971). Petitioner's death sentence was commuted to life when Florida's death penalty was held to be unconstitutional the following year. In October 1988, 21 years after the seven children were murdered, the official file, which had been stolen ten years earlier from the office of the assistant state attorney who had prosecuted Petitioner, appeared in the office of the Governor of the State of Florida. Governor Bob Martinez ordered the Florida Department of Law Enforcement (FDLE) to investigate the disappearance and re-appearance of the file and accompanying information. That investigation resulted in new information and admissions surrounding the circumstances leading to the arrest and conviction of Petitioner. The Governor entered an Executive Order on July 31, 1989, appointing Janet Reno, State Attorney for the Eleventh Judicial Circuit of Florida, to provide prosecutorial assistance to FDLE. That Executive Order further directed FDLE to continue its investigation into all statements and evidence concerning Petitioner's arrest and conviction and to also investigate any violations of the criminal laws or misconduct by public officials relative to the events surrounding the deaths of the children and the arrest and conviction of Petitioner. On February 13, 1989, another Executive Order, amending the first, was signed by the Governor assigning State Attorney Reno to the Twelfth and Twentieth Judicial Circuits to discharge the duties of the State Attorneys in those Circuits relating to the investigation and prosecution of Petitioner's case. On March 31, 1989, a third Executive Order was signed. It amended the first two and recited that Reno and FDLE had reported their findings to the Governor and that Reno had also advised the Governor that Petitioner had filed a motion for post-conviction relief in the Circuit Court for the Twelfth Judicial Circuit. The Executive Order directed Reno to assume and discharge the duties of the State Attorney relating to any post-conviction proceedings involving Petitioner. A fourth Executive Order was then entered amending the first three by adding to Reno's duties consideration of any further prosecution of Petitioner. As a result of the extensive investigations conducted by Reno and FDLE, Reno joined in Petitioner's pending motion for post-conviction relief. Petitioner's request that his conviction and sentence be vacated was granted, and Petitioner was released from prison. Reno also made the decision that Petitioner would not be re-tried for the murder of Betty Jean Bryant and would not be prosecuted for the murders of the six other children. On May 5, 1989, Reno issued a 35-page Nolle Prosse Memorandum explaining in detail the evidence she had reviewed, the conflicting evidence she had considered, the apparent- perjured testimony that had been given at Petitioner's trial, and the conflicting witness statements which the State had before trial but had not disclosed to Petitioner's attorneys despite a court order to do so. The Memorandum discussed additional problems she had encountered because the physical evidence from the trial 21 years earlier had been misplaced or destroyed, a witness had later recanted his trial testimony, and key witnesses had died since the trial had taken place. Further, as a result of the publicity surrounding her investigation a number of persons had come forward claiming to have evidence, but they had never come forward during the initial investigation. Reno and the two Assistant State Attorneys who worked with her on her investigation determined that in evaluating whether Petitioner should be given post-conviction relief and whether Petitioner should be re-tried, they would only consider the files, records, and evidence that existed at the time that Petitioner was tried. They considered the evidence that had not been disclosed to anyone for 21 years to be unreliable. Some of it was also conflicting. She signed the Nolle Prosse Memorandum as did the two Assistant State Attorneys Don L. Horn and Richard L. Shiffrin. At the final hearing in this cause Don Horn testified extensively as to the contents of the Memorandum. Although he, Shiffrin, and Reno had discussed the misconduct they discovered on the part of the Sheriff and the prosecuting attorneys, they knew that the statute of limitations prevented taking action against those public officials, so the Memorandum did not discuss any action to be taken against them. It only considered the evidence against Petitioner. The Memorandum concluded that a "totally inadequate and incomplete investigation" into the deaths of the seven children had been conducted. Obvious leads had not been pursued, inconsistencies were not resolved, and standard investigative procedures had not been followed. The Memorandum further opined that at the time that Petitioner was charged with murder, the State did not have sufficient evidence to prove his guilt beyond and to the exclusion of a reasonable doubt. The Memorandum concluded that Petitioner "was probably wrongfully accused" based upon the evidence that existed at the time. Three years later a 260-page Memorandum Opinion prepared by United States Attorney Robert Merkle and indicating a need for further investigation into the 1968 prosecution of Petitioner was presented to the Treasurer of Florida. The Opinion, which was not admitted in evidence, was described as a "scathing indictment" of Reno's investigation. As a result, Governor Lawton Chiles issued a confidential Executive Order on October 16, 1992, appointing State Attorney Reno to further investigate all matters pertaining to or arising from the issues raised in the Opinion involving Petitioner's prosecution. On October 30, 1992, the Governor issued a second Executive Order deleting the provisions of his prior Order requiring that it be sealed and confidential. Assistant State Attorney Richard L. Shiffrin, who participated in Reno's first investigation, and Gertrude M. Novicki, Reno's Chief Assistant for Special Prosecutions, were assigned to conduct this investigation. Both of those Assistant State Attorneys signed the Response of the State Attorney of the Eleventh Judicial Circuit. The Response is not dated but a word-processing notation suggests it may have been issued on or about April 30, 1993. At the final hearing, Novicki testified regarding her Response. Rather than responding to or explaining each of the details set forth in Merkle's Memorandum Opinion, Novicki and Shiffrin re-examined the propriety of both the vacating of the original judgment of guilty and the decision to enter a nolle prosse. In doing so, they reviewed the original prosecution in light of the evidence at trial and of the law as it existed in 1968 and also reviewed the ability to re-prosecute Petitioner in light of the evidence currently available and admissible. The Response concluded that the Order granting Petitioner's motion to vacate his conviction and sentence was supported by the facts and the law and that the decision to enter a nolle prosse reached in 1989 was proper. The Response's summary states that the physical evidence against Petitioner did not establish guilt beyond a reasonable doubt, the testimonial evidence as to Petitioner's admissions of culpability were of dubious admissibility and value, the evidence of motive was equivocal at best, and the decision to enter a nolle prosse was unquestionably correct. The summary ends as follows: "Whether or not [Petitioner] is guilty of this horrible crime is uncertain. What is certain is that proof beyond a reasonable doubt of guilt is lacking." The prior proceedings involving Petitioner and the prior reviews of those proceedings have focused on the criminal law standard of guilty beyond a reasonable doubt. That standard, however, is not applicable to this proceeding. In this proceeding wherein Petitioner is seeking monetary compensation for his wrongful incarceration, Section 961.03, Florida Statutes, requires Petitioner to establish by clear and convincing evidence that he committed neither the act nor the offense that served as the basis for the conviction and incarceration and that he did not aid, abet, or act as an accomplice to a person who committed the act or offense. Further, he must prove his actual innocence by verifiable and substantial evidence in order to meet the definition of wrongfully incarcerated person. Petitioner testified that he did not poison his children, that he did not kill his children, and that he never told anyone that he did. He also testified that he did not aid or assist anyone in poisoning or killing his children. In order to provide verifiable and substantial evidence in support of his testimony that he is innocent, Petitioner has taken two approaches. The first is by relying on the investigation detailed in the 1989 Nolle Prosse Memorandum and the testimony of Don Horn, one of the authors. (In its defense, the State offered the 1993 Response and the testimony of Gertrude Novicki, one of its authors.) In so doing, Petitioner has offered clear and convincing evidence that the investigation leading up to Petitioner’s prosecution and conviction was incomplete. The investigation revealed conflicting evidence about whether Petitioner had obtained life insurance policies on his children the night before they were murdered, which he had not, and whether Petitioner believed that he had. The investigation did not determine how the parathion got into the pots and skillet and various food products in the refrigerator or when. The investigation appeared to focus only on Petitioner as a suspect and not also on others whose involvement was suspicious. Toward the end of the investigation and prior to Petitioner’s criminal trial, the prosecutors wrote memos expressing concern about the weakness of their case and their possible inability to present even a prima facie case. After those memos were written, the Sheriff produced three jailhouse informants to testify that Petitioner admitted to them his crimes. They also gave statements that Petitioner said he thought that Reese did it and gave details of different motives she might have had. Rather than resolving the conflicting statements, the prosecution withheld the conflicting statements from the defense. The Nolle Prosse Memorandum discusses these statements and informants and finds that one of the jailhouse informants recanted his testimony after Petitioner’s trial and one was drunk when he testified. The third one, whose statements were given under circumstances that made them highly doubtful, died before the trial, and his testimony given at the preliminary hearing was given to the jury in the form of five witnesses who testified as to their recollections of his testimony. The informants were not the only ones to provide perjured testimony at Petitioner’s trial; the Sheriff also appears to have done so. A review of the Nolle Prosse Memorandum and the detailed evidence it discusses makes it clear that Petitioner was wrongfully accused based upon the evidence and lack of evidence the prosecution had gathered. It is further clear that Petitioner’s conviction and sentence based upon that insufficient evidence should have been vacated, and they were. It is further clear that re-trying Petitioner would be fruitless because the evidence available 21 years after the murders was insufficient: the physical evidence was missing or destroyed, many of the key witnesses were dead, and the evidence that might have been admissible for a re-trial was conflicting. However, the inability of the State to prove Petitioner guilty beyond a reasonable doubt does not prove that Petitioner is actually innocent of committing the murders or aiding in the commission. Petitioner’s second approach to providing verifiable and substantial evidence of his actual innocence is attempting to show that Reese, not the Petitioner, murdered the children. The 1989 investigation showed that, at the time the Richardson children were poisoned, Reese was on parole for killing her second husband with a gun. Although there was also a rumor that she had poisoned her first husband, no evidence was found to support that rumor. Parenthetically, there was also a rumor that Petitioner killed his three other children in Jacksonville, but that was also untrue. Similarly, there was a rumor that Sheriff Cline fathered Reese’s granddaughter and that was why he steered the investigation away from her. The blood tests of all concerned done as part of the 1989 investigation proved that rumor also untrue. Petitioner relies also upon the facts that Reese was the last person in the Richardson home on the day in question, the person who served the children the poisoned lunch, and the person who found the parathion in the shed. Her unconcerned behavior while the Richardson toddlers were exhibiting horrible symptoms on her porch and her lack of concern about whether her children who were playing there might be at risk from whatever was making the Richardson children so sick are suggested to be evidence that she knew why the Richardson children were sick and why her children would not be. It was also suggested that she must have been the murderer since her third husband had gone to Jacksonville with Petitioner and his wife but they had returned without Reese’s husband who never did return to her. Petitioner relies heavily on evidence which he suggests constitutes admissions of her guilt by Reese. The 1988 investigation considered an affidavit by one certified nursing assistant and a taped interview of another, both of whom worked at a nursing home where Reese became a patient in 1986. The affidavit by Belinda Romeo asserts that Romeo asked Reese on more than 100 separate occasions if she killed the seven Richardson children, that Reese replied that she did, and that Reese was competent at the times Romeo asked that question. On the other hand, the transcript of a taped interview of Doris Harris, who was present several times when Romeo questioned Reese, is clearly contrary to that affidavit. Harris states that by the time Reese was admitted to the nursing home, she was incontinent, unable to walk, unable to feed herself, only “half way aware,” unable to say what day or year it was, "back to a child's state," and suffering from Alzheimer’s. When Romeo would ask if she killed the children, she would say that she killed them, say the name Charlie, and then lapse into incoherent mumbling. Harris believed that Reese was saying she killed them because she was the one who fed them the poisoned food, and not because she was the one who put the poison in the food. Reese’s “admissions” are, therefore, ambiguous and not trustworthy. Petitioner also introduced into evidence a 1988 affidavit of Richard H. Barnard, the Chief of Police who began an investigation into the children’s deaths. After he got Reese to admit she was in the Richardson home that day and served the children their lunch, he was removed from the investigation by the “Governor’s office” in a phone call which he believes Sheriff Cline instigated. His affidavit undermines the statements of the jailhouse informants, expresses his concern that Sheriff Cline may have tampered with the jury, and states his opinion that Sheriff Cline framed Petitioner. He concludes with his opinion that Petitioner was innocent and Reese was guilty. The hearsay evidence and suggestions that Reese was guilty of the murders do not constitute verifiable and substantial evidence of Petitioner’s innocence. Opinion testimony does not constitute verifiable and substantial evidence of Petitioner's innocence. The Nolle Prosse Memorandum and the Response do not constitute verifiable and substantial evidence of Petitioner’s innocence. The testimony of Horn and Novicki as to what they considered during their investigations does not constitute verifiable and substantial evidence of Petitioner’s innocence. Lastly, Petitioner’s own testimony denying his guilt is not verifiable and substantial evidence of his innocence. Simply put, the evidence in this proceeding does not establish Petitioner’s actual innocence. Since Chapter 961, Florida Statutes, does not provide a definition of “actual innocence,” Petitioner argues that the definition should be that based upon the evidence it is more likely than not that no reasonable juror would have convicted him. That definition is found in Supreme Court of the United States and Supreme Court of Florida cases. Bousley v. United States, 523 U.S. 614 (1998); Schlup v. Delo, 513 U.S. 298 (1995); Tompkins v. State, 994 So. 2d 1072 (Fla. 2008); Mills v. State, 786 So. 2d 547 (Fla. 2001). Petitioner’s argument is not persuasive. All of those cases involved motions for post-conviction relief, not claims for money damages. That definition of actual innocence was likely utilized when Petitioner was granted post-conviction relief by having his conviction and sentence vacated and being released from prison, which is the relief which results from meeting that definition. That definition of actual innocence tests the legal sufficiency of evidence. The Statute regulating this proceeding does not consider legal sufficiency; rather, it considers factual sufficiency by requiring the undersigned to make findings of fact as to Petitioner’s actual innocence if proven by verifiable and substantial evidence. In other words, proof of factual innocence is required. Perhaps the reason the Statute does not contain its own definition of actual innocence is that the Legislature intended the words to have their plain, ordinary meaning. A review of the two investigations of Petitioner’s prosecution clearly shows an absence of evidence proving Petitioner guilty beyond a reasonable doubt. However, a review of the two investigations does not show that Petitioner is actually innocent. Accordingly, Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence and, thus, has failed to establish that he is a wrongfully incarcerated person eligible for compensation under the Victims of Wrongful Incarceration Compensation Act. RECOMMENDED DETERMINATION Based on the record in this proceeding and the above Findings of Fact, it is RECOMMENDED that an order be entered by the Circuit Judge determining that Petitioner has failed to meet his burden of proving actual innocence by clear and convincing evidence, denying Petitioner’s claim for compensation, and dismissing his Petition. DONE AND ENTERED this 21st day of August, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of August, 2009. COPIES FURNISHED: Robert I. Barrar, Esquire Law Offices of Ellis Rubin & Robert I. Barrar 6619 South Dixie Highway, No. 311 Miami, Florida 33143 Raul C. De La Heria, Esquire 2100 Coral Way, Suite 500 Miami, Florida 33145 Dennis Nales, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237 Earl Moreland, Esquire Office of the State Attorney 2071 Ringling Boulevard, Suite 400 Sarasota, Florida 34237
