Findings Of Fact The Respondent, John J. Piccione, is an instructor at Gold Coast School of Real Estate, Inc., holding instructor's permit number ZH 31158. He has been a licensed instructor for approximately fifteen years. Piccione used to be the permit holder for Gold Coast School of Realty, Inc., but as of January 3, 1984, the school permit was issued to Mary Piccione. Additionally, Mary Piccione is the chief administrator of Gold Coast School of Realty, Inc. John J. Piccione's license as a real estate broker was suspended for one year, from November 3, 1983 to November 2, 1984.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges contained in the Administrative Complaint be DISMISSED. DONE and ORDERED this 21st day of September, 1984, in Tallahassee, Florida. DIANE K. KIESLING 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 21st day of September, 1984. COPIES FURNISHED: Fred Langford Staff Attorney Department of Professional Regulation Real Estate P. O. Box 1900 Orlando, Florida 32802 John J. Piccione 1515 E. Silver Springs Boulevard Suite 105-WG Ocala, Florida 32670 Harold R. Huff, Director Department of Professional Regulation, Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue The issue is whether Respondent's license as a state certified general real estate appraiser should be disciplined for the reasons cited in the Administrative Complaint filed on March 5, 1997.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In 1994, Respondent, James M. Milliken, Jr., was licensed as a state registered appraiser, having been issued license no. RI-0001148 by Petitioner, Department of Business and Professional Regulation, Real Estate Appraisal Board (Board). As such, Respondent could perform appraisal services under the supervision of a licensed or certified appraiser. When the events herein occurred, Respondent was employed as a registered appraiser by Gulf/Atlantic Valuation Services, Inc., in Sarasota, Florida. His supervisor was Alan C. Plush, a state certified general appraiser. After the events herein occurred, Respondent obtained his licensure as a certified general appraiser. His most recent license number is 0002351, also issued by the Board. Respondent also held a real estate license during this period of time, but it was inactive when the alleged misconduct occurred. Pursuant to a change in state law, all registered appraiser licenses automatically expired on November 30, 1994. Renewal notices were sent by the Board to each licensee approximately sixty to ninety days before that date. Unless a licensee renewed his license by the expiration date, he was unable to lawfully "operate" as an appraiser. The evidence shows that Respondent's registration expired on November 30, 1994, and it was not renewed until March 9, 1995, after Respondent had sent a check and application to the Board, and his registration was then renewed. Therefore, between December 1994 and when the license was renewed, he was not authorized to have his name appear on an appraisal report or operate as an appraiser. Respondent later applied for licensure as a certified general appraiser. As a part of that process, he was required to provide evidence of appropriate experience obtained as a registered appraiser. To establish his experience, Respondent provided, among other things, copies of two appraisals he performed in December 1994. Those appraisals have been received in evidence as Petitioner's Exhibits 4 and 5. Respondent's name is found on both documents as being one of the appraisers preparing the reports. As a part of a routine, random audit to verify Respondent's experience to qualify as a certified general appraiser, a Board analyst reviewed his file and discovered that the above two appraisals had apparently been performed when Respondent's registration had expired. This prompted an investigation. During the course of the Board investigation, a Board investigator interviewed Respondent, who acknowledged that he had performed the two appraisals in question, one dated December 9, 1994, and the other dated December 15, 1994. Thereafter, an administrative complaint was issued. At hearing, Respondent indicated that when his registration expired on November 30, 1994, he was attempting to secure a date from the Board on when he could be examined for licensure as a certified general appraiser. Because he did not want to pay a fee for both his current registration and the new licensure, he delayed sending in his registration renewal application and check. When Respondent could not get a satisfactory date for the examination, he forwarded a check to the Board in February 1995 to renew his registration. Respondent contended that he was under the impression that there was a grace period in which he could renew his registration without having his license expire. Testimony at hearing established, however, that no such grace period existed. Respondent also contended that the Board failed to prove that he prepared the reports since his signature does not appear on either document copy. However, his name, title, and license number are typed on the front page of each report, and witness Plush established that Respondent's signature would only appear on the original copy sent to the client, while copies retained by the appraiser's office are customarily unsigned. Further, his supervisor confirmed that Respondent actively participated in the two projects, and as noted above, Respondent acknowledged to an investigator that he worked on both reports. Finally, in seeking a new license, Respondent represented to the Board that he had prepared the two reports. It can be reasonably inferred from the evidence that at least a portion of the appraisal work for the two reports in question was performed by Respondent prior to November 30, 1994, when his registration was still active. Even so, the remainder of the work was completed after his registration had expired. By doing so, Respondent operated as an appraiser without being registered. Both reports make reference to the fact that they were prepared in conformity with "all regulations issued by the appropriate regulatory entities, regarding the enactment of Title XI of the Financial Institution Reform, Recovery and Enforcement Act of 1989 (FIRREA)." It is fair to assume, then, that the two matters are federally related transactions within the meaning of the law. Each of the two evaluations exceeded one million dollars. Without offering a specific citation, the Board analyst "believed" that the threshold under the federal law in 1994 was $150,000.00, and that any federally related transaction exceeding that value required the use of a state licensed appraiser. If this is correct, Respondent had to be licensed in order to perform appraisal services on the two subject properties. In mitigation, it is noted that this is the first time Respondent has ever been subject to disciplinary action by the Board. In addition, no member of the public or user of the reports suffered harm by virtue of the violation. The violation also appears to be somewhat minor, and there is only one count in the complaint. Finally, Respondent is presently a law student attending school on student loans, and he will suffer financial hardship as a result of the imposition of a fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Real Estate Appraisal Board enter a Final Order finding that Respondent violated Section 475. 626(1)(a), Florida Statutes, and that he be given a reprimand. DONE AND ENTERED this 24th day of December, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of December, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Post Office Box 1900 Orlando, Florida 32802-1900 J. Murray Milliken, Esquire Post Office Box 174 Floral City, Florida 34436-0174 James Kimbler, Acting Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent's Florida real estate license should be disciplined based upon the charge that the Respondent is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility to Administrative Complaints pursuant to the laws of he State of Florida, in particular, Section 20.30, Florida Statues, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. Respondent Doris Duke is now and was at all material hereto a licensed real estate salesman in the State of Florida having been issued license number 0441054 in accordance with Chapter 475, Florida Statutes. On June 13, 1989, the Respondent solicited and obtained a listing for the sale of an adult care center from seller Shirley Holland. The listing price was $300,000. (Petitioner's Exhibit 1). The property had been on the market for sometime and seller was anxious to sell. S. L. Patterson and Anne M. Reese had been interested for sometime. On January 19, 1990, the Respondent solicited and obtained an offer to purchase the adult care center from S. L. Patterson and Anne M. Reese, buyers, in the amount of $225.000. The contract was contingent upon financing. The Respondent presented the offer to the seller on or about January 20, 1990. Seller would have received approximately $25,000 and a second mortgage for $65,000. (Petitioner's Exhibit 2). Subsequently the buyers were unable to obtain financing, and the contract was void at this point. In an effort to consummate the sale, Respondent arranged financing for the buyers. The terms of this transaction as reflect in the closing documents, FREC 4, showed a sales price of $125,00, with a first mortgage of $100,000, a second mortgage of $46,250 and a third mortgage to seller of $84,500. However, this financing required an added $25,000 which came from the $25,000 originally to the seller. The Respondent advised the seller of the changes the day before the closing; however, the changes to the contract were not reflected in writing either in the contract or in an addendum. Instead the changes were reflected in the closing documents (FREC 4). Instead of receiving about $2,000 the seller had to pay $68.08 at closing. The Respondent and Respondent's employer Century 21 Harris Real Estate & Associates, Inc. profited in the amount of a $22,500 commission, an amount which they earned under the listing contract. Subsequently, the purchasers, who were black and operated an adult congregate living facility, were the targets of racially motivated vandalism and hate crimes. As result they were unable to make a financial success on the venture. The buyers defaulted on their mortgage payments, and foreclosure was initiated by one of the principal mortgagees.
Recommendation RECOMMENDED that charges against the Respondent be dismissed. DONE AND ENTERED this 30th day of October, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 30th day of October, 1991. APPENDIX CASE NO. 91-4554 The Petitioner's Proposed Recommended Order was read and considered. The following is a list of the findings which were adopted and which were rejected and why. Paragraphs 1, 2, 4, 5, 7, 8, 9, 10, 11, 12 and 13 were adopted. Paragraph 3 was rejected as irrelevant. Paragraph 6 was rejected as irrelevant and contrary to the best and most credible evidence. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney Florida Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Doris Duke 6676 Cedar Point Road Jacksonville, Florida 32226 Darlene F. Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Vincent A. Riggio was at all times material hereto a licensed real estate salesperson in the State of Florida, having been issued license number 0206262, effective in 1978, and as such was authorized to prepare real estate appraisals. Respondent completed basic real estate appraisal classes and attended seminars relating to property appraisal. Respondent was an associate with Grover H. Vass & Associates, Inc., 414 West Colonial Drive, Orlando, Florida from July 11, 1986 to December 21, 1988. Respondent's appraisal services were retained by United Mortgage Company on an ongoing basis for the purpose of granting second mortgage loans. In September, 1986, Respondent was requested by United Mortgage Company to prepare the subject appraisal for property located in Lake County, Florida, that was owned by Floyd Bush and his wife. The subject property consisted of land, a single family residential structure, and plant nursery structures and equipment. Pursuant to the request of United Mortgage Company, Respondent undertook the subject appraisal and performed reasonable and necessary investigations and reviews to prepare the same. Respondent had appraised the subject property once before and was aware of the property's unique character. Respondent visited and viewed the property. He observed the nursery business in operation at the time of the inspection. He also attempted to obtain comparable sales and market data but found that , due to the location and uniqueness of the property, he would be required to use, in part, an appraisal method based on the cost approach. Respondent determined the current market value of the property to be $136,800 and prepared his written appraisal report accordingly. The report was transmitted to United Mortgage Company as directed by and with the limitations imposed by them. Respondent had no financial interest in the real estate being appraised nor in any other aspect of the subject transaction. George Jeknavorian loaned $23,500 to Mr. and Mrs. Floyd Bush. The loan was secured by a second mortgage on the subject property, which was processed through United Mortgage Company in September, 1986. At the time of the loan, George Jeknavorian had neither seen the subject appraisal report nor the subject real estate. He relied on persons other than Respondent for his information relating to this loan transaction. The property was apparently encumbered by a first mortgage in the approximate amount of $64,800 at the time of the second mortgage which made a total debt on the property of approximately $88, 300. After two payments had been made subsequent to the closing of the second mortgage loan transaction, the Bushs defaulted on the required payments. Thereafter, Jeknavorian opted to accept a deed in lieu of foreclosure instead of proceeding forward with the foreclosure. Jeknavorian became the owner of the subject property in March of 1988. Jeknavorian listed the property for sale with Ms. Jean Williams, a licensed real estate salesperson. She determined the value of the property to be between $100,000 and $110,000, and with the concurrence of the new owner, she listed it for sale at $110,000. When she inspected the property in 1988, before listing it, Williams observed it to be in serious disrepair. The property as listed consisted of a house, land and plant nursery with all equipment, but with no inventory and no warranty as to the equipment. The price was reduced, but the property did not sell. In late 1988, the holder of the first mortgage took back the property. At that time, Jaknavorian had invested or was owed a total of $33,000. His losses consisted of the amounts due and owing on the second mortgage, payments to the holder of the first mortgage after he became the owner of the subject property and the costs of trash removal after he became the owner of the property in March, 1988. The most credible testimony indicates that the appraisal had several technical defects, but, as a whole, was acceptable to the requirements of United Mortgage Company for which it was prepared.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Administrative Complaint against Respondent be DISMISSED. DONE AND ENTERED this 31st day of January, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of January, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact: Accepted: paragraphs 1,2 (in substance),3,4(in part),6 and 7(in substance) Rejected: paragraphs 5 and 4 (that portion of paragraph 4 which proposes that the complaining witness relied upon the appraisal to his detriment and also that the property was worth no more than $95,000 at the time of the appraisal) as unsupported by the weight of the evidence. Respondent's Proposed Findings of Fact: Accepted: paragraphs 1,2 (in part) ,3,4 (in substance) ,5,7 (sentence 1), 8, 10, 11(in substance), 13(in substance), 14(in substance) Rejected: paragraphs 6(witness not credible),7(several sentences not relevant), 9 (argument). COPIES FURNISHED: Steven W. Johnson, Esquire Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32802 Robert L. Taylor, Esquire 225 E. Robinson Street Suite 445 Orlando, FL 32801 Darlene F. Keller Division Director 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
Findings Of Fact Petitioner, Teresita de Jesus Rangel, who is a thirty-four year old female, made application in early 1987 for licensure as a real estate salesman by examination with respondents Department of Professional Regulation, Division of Real Estate (Division). Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld." Petitioner answered in the affirmative and gave the following response: 6. Conviction of crimes: January 28th, 1983 - Charged with possession with intent to distribute a controlled substance. Was found guilty and charged with 3 years incarcerated and 3 years Special Parole. Conviction took place in Los Angeles, Ca. March 17th, 1983 - Charges: Conspiracy to import cocaine and marijuana. These were started as two different cases. Pleaded guilty to conspiracy and was sentenced five years on each case to run concurrent with the case in California. This conviction took place in Fort Lauderdale, Fl. I started my sentence on January 11th, 1984 at F.C.I., Lexington, Kentucky and was released to a Half-way House on October 2nd, 1986. These arrests stem from the same circumstances and were handled together and treated as one. The arrests occurred as a result of my involvement with my then boyfriend. Approximately a year and a half prior to my arrests I became romantically involved with this individual. This individual was Co- defendant in the case I was arrested. My involvement in the criminal case stands on my romantic involvement with him. Due to lack of judgement [sic] on my part, I became criminally involved with him eventually leading to our arrest. I have had no contact whatsoever with this individual since my incarceration. I further intend to avoid all contact with him in the future. At this time, I have an outstanding offer from Dominion Realty, Inc. In fact, the Broker at this firm is encouraging me to make this application to become a real estate salesperson. I realize this is a once-in-a- lifetime opportunity to begin a career. It will allow me to stand on my own and provide a respectable home and future for my children. Based upon the above response, the Division issued proposed agency action on July 14, 1987 denying the application. As grounds, the Division stated its action was "based upon (her) answer to Question #6 of the licensing application and/or (her) criminal record according to the appropriate law enforcement agency." The denial prompted this proceeding. Petitioner is divorced and the sole support of three young children. She has been in the work force since 1972. According to all accounts, her work performance over the years has been exemplary, and Rangel was steadily promoted to positions of greater responsibility and duties in each of her jobs. Her work experience includes stints with a mortgage brokerage firm, an air freight carrier, an equipment distributor and a property management firm where she is now employed. In 1983 Rangel was arrested on the previously cited charges, and pled guilty. She received three and five year prison terms in California and Florida, respectively, to run concurrently. Her involvement in the crimes was due to a romantic relationship with another man (the father of one of her children), who was also arrested and charged with the same offenses. Needless to say, their relationship went on the skids and they no longer have contact with one another. After her plea, Rangel began serving her sentence in January, 1984 at a federal institution in Lexington, Kentucky. In early October, 1986, or thirty-four months later, she was given an early release. Rangel then lived in a halfway house in Coral Gables until April- 1987. She now lives with her parents and three children in Miami. She will remain on probation until July, 1991. As such, she is subject to a number of special conditions, including random drug testing, a restriction on travel, and regular reporting to a parole officer. So far, she has had no problem in conforming with all restrictions imposed by the government, and anticipates none in the future. Independent testimony established that petitioner is highly regarded by her employer. She is considered to be honest and of good character, and even though her employer is aware of her criminal record, Rangel has been entrusted with the responsibility of handling large amounts of cash (up to 10,000) each day without supervision. She is in charge of managing four executive office centers, and if licensed, will become a rental agent for Dominion Realty, Inc., a subsidiary company of the corporation for which she now works. Rangel was candid and forthright in her testimony. She willingly accepted responsibility for her prior actions, and now wants the opportunity to use a real estate license as a means to provide support for her family. She appeared to the undersigned to be mature, and capable of handling the responsibilities of a real estate salesperson. Given her present job responsibilities, including the handling of large sums of money, and subsequent good conduct since release from prison, it is found Rangel is sufficiently rehabilitated to justify granting her application. Moreover, it is not likely that the public and investors will be endangered by licensure.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Teresita de Jesus Rangel for licensure as a real estate salesperson be GRANTED. DONE AND ORDERED this 24th day of September, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 24th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3028 Respondent: Covered in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in findings of fact 2 and 4. Covered in findings of fact 2 and 4. Covered in finding of fact 4. Covered in finding of fact 4. Covered in finding of fact 4. Covered in finding of fact 4. Covered in finding of fact 5. Covered in finding of fact 5. COPIES FURNISHED: Dennis N. Urbano, Esquire 1000 Ponce de Leon Boulevard Suite 300 Coral Gables, Florida 33132 Lawrence S. Gendzier, Esquire 400 West Robinson Street Suite 212 Orlando, Florida 32801 Mr. Harold Huff, Director Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Honorable Tom Gallagher Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times relevant thereto, respondent, Richard M. Kessler, was a licensed real estate broker and real estate school permit holder having been issued license number 0119097 by petitioner, Department of Professional Regulation. Division of Real Estate (Division). Respondent, Aldo J. Papaleo, is a licensed real estate broker and real estate school instructor having been issued license number 33367 by petitioner. Kessler has operated a real estate school in Broward County Florida since 1977. When the events herein occurred, the school operated under the trade name "Investors Property Management and Read Estate, Inc." in Coral Springs, Florida. Among other things, the school is designed to offer the pre- licensing education necessary for persons desiring to become licensed as real estate salesmen. According to rules promulgated by petitioner in 1983, the course format had to have sixteen three-hour sessions with a one-hour quiz and review session at the end of each three hour block of instruction. In addition, each student had to take a three-hour examination at the end of the classroom work and achieve a grade of 70 percent or better in order to take the real estate salesman examination. Kessler offered a six week salesman pre-licensing education course beginning on March 23, 1983, which consisted of three three-hour sessions per week in the evenings. The course was offered at his offices located in Coral Springs, Florida. Jeffrey (last name unknown), who was considered an outstanding instructor, was going to teach the course, but was out of the country at that time. Needing a replacement instructor, Kessler advertised for one in the local newspaper. Papaleo, who is also known as Alan A. Parker, had just received his instructor's license that month and answered the ad. Papaleo was a college graduate, had previously taught insurance licensing courses (but not real estate) for over twenty years in New York and Connecticut, and in addition to holding a broker's license, was designated as a GRI (graduate of real estate institute) and CRS (certified residential specialist). The latter two designations are awarded to real estate licensees who take additional coursework beyond the salesman and broker level. Finding his qualifications to be satisfactory, Kessler hired Papaleo to teach the course. Before the first session, Kessler reviewed all course materials with Papaleo, and the format to be followed. The course materials included the March, 1983 Syllabus and Instructor's Guide prepared by the Florida Real Estate Commission and the FREC Handbook, and students were required to purchase an approved real estate textbook authored by C C. Curtis. Papaleo was specifically told to "conform" and "abide" by the teaching syllabus. Nine individuals enrolled in and completed Kessler's course, each paying $95.00 for the instruction and $9.00 for the Curtis textbook. At least two of the nine enrolled in the class because of its "excellent reputation" while several others were attracted by its location in Coral Springs and the evening instruction format. The complaint herein stems from four students in Papaleo's course, three of whom testified at final hearing. They characterized the instruction offered by Papaleo as "confusing," not "adequate," and insufficient to enable them to pass the final examination. They complained that Papaleo read much of the class instruction from the syllabus and textbook, that he did not encourage class participation, and did not devote a great deal of time to reviews and answering questions. They also complained that course material used in other real estate courses (for example, Bert Rogers) was better and easier to understand. Because of what they perceived to be deficiencies in the level of instruction, three of the students approached Kessler one day after much of the course had been completed. In their meeting with Kessler they complained about Papaleo's teaching techniques, and their dissatisfaction with his instruction. Kessler promised to look into it, and later spoke with Papaleo. He instructed Papaleo to explain the course material in even greater detail so that the complaining students would better comprehend the subject, and he monitored the first thirty minutes of the next session. Finding Papaleo's instruction to be "appropriate," he thought the problem had been resolved. About a week later, Mrs. Kessler received an anonymous telephone call complaining that Papaleo was not a good instructor and asking that he be "removed" from the classroom. At that point, Papaleo and Kessler mutually agreed that Papaleo should leave. The remaining week of the course was taught by Kessler's son, Scott, without any complaint from the students. After the course ended, the four students demanded that Kessler return their $95.00 tuition fee. When he refused they wrote him a letter on May 14, 1983, advising him that the course instruction by Papaleo was inadequate and that unless he refunded their fees, their "only recourse would be to register a formal complaint with the DPR." Interpreting this to be blackmail, and believing their claims to be without merit, Kessler refused their demands to refund the fees. The issuance of the administrative complaint followed. In teaching the course, Papaleo used only those materials approved by the Division. Even though some of it was read directly from the syllabus and FREC handbook, there is no evidence that this technique is prohibited by the Division. Moreover, there was no expert testimony as to what instruction is or is not "approved," or what constitutes an "adequate" level of instruction. The complaining students knowledged that they were allowed to ask questions, but that one student consumed much of the time with detailed questions that they did not understand. They also conceded that Papaleo frequently used the blackboard, and expounded on the text material by giving examples from his own personal experiences in real estate. Although the record is conflicting as to whether an appropriate amount of time was devoted to a quiz and review session after each block of instruction, it is found that Papaleo did not deviate from the Division requirements. It is further found that Papaleo did not discourage students from "class participation" as alleged in the complaint. Of the three students testifying at final hearing, two passed the end of course examination and were qualified to then take the salesman examination. In accordance with his school policy Kessler offered a free repeat of the course to any students who did not pass the final examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED, with prejudice. DONE and ORDERED this 5th day of September, 1985, in Tallahassee Florida. DONALD R. ALEXANDER 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 5th day of September, 1985. COPIES FURNISHED: James H. Gillis, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Richard M. Kessler 9381 W. Sample Road Coral Springs, Florida 33065 Mr. Aldo J. Papaleo 259 Commercial Boulevard Lauderdale-by-the-Sea. Florida 33308 =================================================================
Findings Of Fact On or about October 9, 1985, Petitioner Taylor properly applied for licensure with the Florida Real Estate Commission as a real estate salesman. Question #14 of the application filed by Petitioner read: Yes. Has any license, registration or permit to practice any regulated professions occupation or vacation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or motion upon grounds of fraudulent or dishonest dealing or violations of lawn or is any proceeding now pending? Question #14 of the application was answered by Petitioner as follows: Petitioner also underlined the words within the question, "now pending" and penned in the following explanation: "Department of Professional Regulation Case No. 0057020 dealing with improper inventory and dispensing substances improperly. Have denied the facts." On January 29; 1986 the Florida Real Estate Commission denied Petitioner's application for licensure upon the following grounds: Subsection 475.17(1) calls for the applicant to be honest, truthful, trustworthy; and of good characters and shall have a good reputation for fair dealing... The reason for the Commission's action is based on your answer to Question(s) #14 of the licensing application and/or your criminal record according to the appropriate law enforcement agency." This decision was conveyed to Petitioner by a letter of that date (R- 3). Thereafter a subsequent letter dated February 19, 1986, from the same Commission counsel specified that the Commission did not feel that Petitioner had the necessary qualifications for licensure pursuant to Sections 475.17 and 475.25 Florida Statutes. Previously, on July 9, 1985, an administrative complaint had been filed against Ms. Taylor, Petitioner herein, in Department of Professional Regulation, Board of Pharmacy v. Taylor DOAH Case No. 85-2657; charging Ms. Taylor with improper inventory and disposing of drugs. This was the first and only action of this type taken against Petitioner's pharmacist's license. She has worked as a pharmacist since 1975 without similar incident. In an attempt to resolve the Board of Pharmacy action, Ms. Taylor signed a stipulation which the Board of Pharmacy approved November 4, 1986, (approximately one month after the real estate application and almost three months prior to its denial). That stipulation with the Board of Pharmacy provided for eighteen months' probation during which Ms. Taylor would submit to random urinalyses to determine if she were using controlled substances, a fine (apparently to cover the cost of the urinalyses and an agreement not to attempt to reactivate her pharmacy license for at least six months. Ms. Taylor had voluntarily deactivated her pharmacist's license in June 1985 prior to the filing of the Pharmacy Board's administrative complaint. She deactivated her pharmacist's license with two goals: first to avoid being tempted to "help out" when called to act as a relief pharmacist in an emergency and second to pursue a career in real estate which she felt would be easier on her back. The underlying facts giving rise to this disposition of the Pharmacy Board case are that Ms. Taylor, while in therapy for a serious back ailment was called in as a relief pharmacist. As a result of the unexpected summons to work she did not have her prescribed medication with her. Petitioner Taylor has had three surgeries in the past four years related to a ruptured disc. While working as a relief pharmacist she experienced pain and rather than abandoning her position or closing the pharmacy to retrieve either her medication or her prescription from her home, she took a Darvocet-M-100 for pain. Darvocet-M-100 is a controlled substance. This medication had been prescribed for her but the pill she took was from the pharmacy's stocks contrary to law. Petitioner states this is a common, if improper, practice among pharmacists. She volunteered this information to a DPR investigator for the Board of Pharmacy with the result that she was charged in the aforesaid administrative complaint. On an additional occasion, also while Petitioner was working as a relief pharmacist for the same employer Petitioner obtained a controlled substance for her husband. Petitioner's husband, a physician, had been prescribed Demerol for a chronic kidney problem. Demerol is a controlled substance. The medication was orally prescribed by another physician Dr. Wadsworth. Petitioner filled the oral prescription but failed to have the written prescription physically present in the pharmacy within 72 hours as required by Pharmacy Board rules. Petitioner advised the owner of the pharmacy within a few hours of the violation and personally delivered to the pharmacy her husband's written prescription the working day following the day on which the written prescription technically had been due. Petitioner also volunteered information concerning this incident to the DPR investigator. Her prosecution on the two incidents apparently arose because of a DPR investigator's catch-all question, "Have you ever taken drugs?" Catherine Sanders, a licensed real estate broker for five years and salesman for nine years employs Petitioner as a secretary/computer operator/bookkeeper in her new real estate office. Petitioner started setting up the new real estate office in a clerical capacity for Mrs. Sanders in April or May of 1985. Mrs. Sanders formally opened the office in September 1985. In January 1986, Petitioner was off work for two months but thereafter has been active in the firm in a clerical capacity. Although this amounts to only about four months intensive open office involvements, Petitioner and Mrs. Sanders both relate Petitioner has attended numerous real estate seminars and has participated clerically in mortgage financing. They also testified that Petitioner has been investing in real estate for years. Mrs. Sanders has admittedly been a close friend of Petitioner for a number of years but her testimony that Petitioner's reputation among real estate investors is excellent is unrefuted. Over the years, Mrs. Sanders has formed a financial investment partnership in several investment projects with Petitioner. She considers Petitioner to be an ideal employee and is familiar with Petitioner's reputation both personally and professionally for truth, veracity, and fair dealing in the community and considers it excellent. If a real estate license is granted her Mrs. Sanders intends to employ Petitioner as a salesman. Mrs. Sanders has never observed any evidence of drug abuse by Petitioner in the several years she has known her. She was familiar with the Board of Pharmacy case and opined that it in no way diminished her belief in Petitioner's honesty, truthfulness, trustworthiness, good character, and good reputation for fair dealing. This evidence also was not refuted. The opinion of this character witness, although that of one admittedly a friend of Petitioners is the sole direct evidence of Petitioner's present character as of date of formal hearing. The Commission has not alleged or shown otherwise. 1/ Petitioner's completion of her applications and her candor and demeanor at hearing provide further evidence of her character and honesty. On her application, she truthfully disclosed her inactive status with the Board of Pharmacy and provided sufficient information for the Florida Real Estate Commission to investigate the events leading up to it. At hearings she candidly admitted her past indiscretions and unlawful acts and expressed a sincere desire for an opportunity to become a real estate salesman. She intends never to reactivate her pharmacist's license.
Recommendation That the Florida Real Estate Commission enter a final order providing that subject to successful completion of the necessary examinations; Petitioner be granted a real estate salesman's license. DONE and ORDERED this 6th day of August 1986, in Tallahassee, Florida. ELLA JANE P. DAVIS 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 6th day of August, 1986.
Findings Of Fact Petitioner, Jules Lipp, was a candidate on the real estate broker's examination given on September 24, 1984, in Miami, Florida. The test is administered by respondent, Department of Professional Regulation, Division of Real Estate (Division), and requires a score of 75 to pass. The broker's licensing examination is developed by respondent and based on reference books authorized and published by the Division, although individual real estate schools may publish their own materials. However, the Division is not responsible for any materials published by real estate schools which may deviate from or differ with the authorized reference books from which the questions are drawn. The instructions on the examination require the candidates to choose the most correct answer. Whenever questions include a negative word, that word is underlined to emphasize and highlight the negative response desired. The questions on the examination are reviewed prior to the administration of the examination by a validation committee consisting of an attorney, a Real Estate Commission member, the Division education director, and the Division examination development specialist. On an undisclosed date petitioner received notice that he had failed the examination. After receiving no satisfaction at a review session with Division personnel in Orlando, he requested a formal hearing to challenge questions 4, 5, 12, 16, 18, 22, 50, 55, 59, 71, and 74 on the examination. During the course of the hearing, he limited his challenge to questions 5, 16, 18, 50, 71, and 74. Other than his own testimony, petitioner offered no evidence to show that his answer to the above questions were the most correct. Indeed, uncontroverted expert testimony clearly established that petitioner's answers were incorrect, that the challenged questions were drawn from the authorized reference books, and were not "unclear" and "ambiguous" as petitioner contended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that no change be made to petitioner's grade on the real estate broker's examination. DONE and ORDERED this 12th day of March, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of March, 1985. COPIES FURNISHED: Mr. Jules Lipp 5300 N.W. 77th Court Miami, Florida 33166 Drucilla E. Bell, Esquire 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for consideration in this case is whether Respondent's license as a real estate salesperson should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Department of Professional Regulation's Division of Real Estate and the Florida Real Estate Commission were the state agencies in Florida responsible for the licensing of real estate professionals and the regulation of the real estate profession in this state. Respondent was licensed as a real estate salesperson under license number SL 0566467. Mr. Brennan was licensed in Florida as a salesperson in 1990, and his initial license expired on March 31, 1992. It was renewed on time and due to expire a second time on March 31, 1994. Consistent with Florida Real Estate Commission requirements, a real estate salesperson is required to complete no less than 14 hours of continuing professional education in the two years prior to license renewal. Of these, 11 hours of course work can be in a specialized area, but at least 3 of the 14 hours must consist of core law, legal information designed to update the salesperson on the changes to Commission rules and policies and changes in the law as it relates to the practice of real estate in the interim since the prior renewal. Licensees periodically are put on notice of the requirement for continuing education and what it must entail, and with or before application for renewal, must certify as to the taking, testing and passing of the required courses. If a licensee certified compliance with the continuing education requirement but, in fact, was not in compliance, that individual would be in violation of the Commission rules even if the required fees were paid. On January 27, 1994, Respondent applied for renewal of his salesperson's license which was due to expire on March 31, 1994. Along with his application for renewal, Respondent submitted his check for $68.50 made payable to the Department, and affirmed he had completed the required 14 hours of continuing education for the license period beginning April 1, 1994. The license was renewed. By letter dated June 15, 1995, Respondent was notified by Barbara Rohloff, a records supervisor for the Department, that his 1994 renewal application had been selected for audit. As a result of that audit it was determined that Respondent had completed the required 11 hours of specialty education and an additional 3 hours in "Agency: Choices, Challenges and Opportunities," also a specialty course but not approved for credit toward the required "core law" portion of the continuing education requirements. Therefore, though Respondent had completed 14 hours of continuing education as required, that 14 hours did not include the required 3 hours of core law. The 11 hours of specialty education Respondent took was course number 100 of the Realtors Institute Course and was approved by the Florida Association of Realtors. The 3 hour course was taken through the Coldwell Banker School of Real Estate in Sarasota in November 1993, and was also an approved course, but it did not meet the requirements for the 3 hour core law course. As a result of this discovery, a determination was made to charge Respondent with misconduct as alleged in the Administrative Complaint. Respondent contends he took the above-described courses in the misinformed opinion that by doing so he was meeting the Commission requirements. When he was first licensed, he was advised he must take and pass 14 hours of continuing education every two years. The 11 hour course was taken in 1991, in advance of the renewal period, upon the representation of the Century 21 instructor with whom the course was taken that was acceptable. When Respondent went to take that 11 hour course, along with his wife, also licensed as a real estate salesperson, a representative of the Sarasota Board of Realtors advised them that the 11 hour course was acceptable toward the continuing education requirements and that they would need an additional 3 hours. When the real estate brokerage with which the Brennans had placed their licenses was sold to another brokerage, Coldwell Banker, they moved their licences to the new brokerage and went to work with that firm. Coldwell Banker offered the 3 hour course which Respondent took and which has been determined not to be acceptable, and Respondent claims the representative of Coldwell Banker advised him, wrongly, it would appear, that the 3 hour course in issue would meet the Commission's requirements. Though this allegation is self- serving to the Respondent, it was not contradicted and is accepted. Respondent denies any intent to mislead or misrepresent. He gained no advantage by taking the instant 3 hour course over the required course. He saved no time or money, it would appear, and there appears to be no reason for him to have intentionally taken the wrong course or to mislead the Commission. Through all his post-audit communication with the Commission, he relates, he was never advised, in a way he understood, just what he should have done in place of what he did, until the day of the hearing when it was explained to him by Petitioner's counsel. Respondent now admits that he did not have the required hours in the correct course, but adamantly asserts he did not, at the time, know or understand what was the problem. That would appear to be the case, and it is so found. The Petitioner presented no evidence to demonstrate an intent to mislead or to misrepresent by Respondent.
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 dismissing the Administrative Complaint against the Respondent, Edward John Brennan. DONE and ENTERED this 3rd day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 1996. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, N-308 Post Office Box 1900 Orlando, Florida 32803-1900 Edward John Brennan 4114 Pro Am Avenue Bradenton, Florida 34203 Lynda L. Goodgame 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 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900
