The Issue The issues in this cause are those promoted by the administrative complaint brought by the Petitioner against Respondent alleging a violation of Section 475.25(1)(f), Florida Statutes, through the entry of a plea of nolo contendere to a charge of vehicular homicide, a felony, as described in Section 782.071, Florida Statutes.
Findings Of Fact Petitioner, as a governmental agency in the State of Florida, licenses and regulates those persons who are engaged in real estate sales within Florida. The authority for this regulatory function may be found in Section 20.30, Florida Statutes, and Chapters 120, 455 and 475, Florida Statutes, and associated rules. Respondent has held a real estate salesman's license issued by the Petitioner during all relevant periods. On September 13, 1986, that license held by the Respondent was inactive. On October 13, 1986, Respondent activated his real estate salesman's license and it remained active at the point of final hearing. In October 1986, Respondent placed his real estate sales license with a real estate broker in Gainesville, Florida, Richard Fort Rogers. Richard Fort Rogers is the father of the Respondent. Respondent continues in his affiliation with his father's real estate brokerage operation. On September 13, 1987, Respondent was involved in an automobile accident in Gainesville, Alachua County, Florida. He was operating the motor vehicle in question and through that operation caused the death of Harold E. Thompson. Out of these circumstances, Respondent entered a plea of nolo contendere to the offense of vehicular homicide. Section 782.071, Florida Statutes. This disposition is set forth in Petitioner's composite exhibit 2 admitted into evidence. The plea was by negotiation in the case The State of Florida vs. Richard Fort Rogers in the Circuit Court, for the 8th Judicial Circuit of Florida, Alachua County, Court, #86-3203-CF-A. The amended information to which the Petitioner pled dates from December 10, 1986. The negotiated plea was entered on February 2, 1987. On that same date the Court entered an order accepting the plea. For this offense, adjudication of guilt was withheld, the Respondent was given three years' probation, required to pay court costs and was screened for alcohol counseling. Following the disposition of his case, by correspondence of February 13, 1987, as received by the Florida Real Estate Commission on February 17, 1987, Respondent advised the Commission of his plea of nolo contendere to the charge of vehicular homicide.
Findings Of Fact Ciccarelli and Moreau are registrants with the Florida Real Estate Commission (Board of Real Estate), both holding registrations as saleswomen. Ciccarelli and Moreau were the real estate salespersons who handled the transaction for the sale of a residence between Dessie Wilson, the seller, and Carl Dudley, the buyer. Darlene Becker, Wilson's daughter, also owned an interest in the property but was not an actual party to the negotiations between Wilson and Dudley as mediated by Ciccarelli and Moreau. Ciccarelli and Moreau presented to Wilson the contract for sale and purchase containing Dudley's initial offer signed July 13, 1978. A copy of this contract was introduced as Exhibit 7. Wilson made a counter offer by interlineating and initialing certain terms in the contract on July 14, 1978, as indicated by her signature and date on Exhibit 2. Dudley had returned to Fort Myers, Florida, where he was living, and Ciccarelli and Moreau communicated Wilson's counter offer to him by telephone July 18, 1978. Dudley made a counter-counter offer in which he accepted the cash terms proposed by Wilson but included the cement table and benches described in Paragraph 1(c) of the contract in the purchase. The table and benches had been stricken and initialed by Wilson in her offer. Ciccarelli and Moreau annotated the contract to reflect the inclusion of these items in the sale by adding "OK for cement table and benches" to Paragraph 1(c). This contract was not initialed by Dudley before presentation to Wilson because Dudley was in Fort Myers. See Exhibit 9. Ciccarelli and Moreau presented the contract, Exhibit 9, to Wilson, who accepted the terms orally. Ciccarelli and Moreau then sent the contract to Dudley by the letter dated July 18, 1978, Exhibit 4. This letter advised Dudley to initial the contract's changes to include the cement table and benches. Dudley did so and returned the contract to Ciccarelli and Moreau, who then presented the contract to Wilson's daughter, Darlene Becker. Becker executed the contract, Exhibit 9, after it was returned. The transaction closed afterward, and a conveyance of the property and payment were exchanged. The closing was attended by Dudley and Wilson, and no objection to the terms of the contract was raised by either party. After closing a controversy arose between Wilson and Dudley concerning the transfer of the cement table and benches. Wilson returned to Dudley the table and benches which she had removed. Paragraph X of the general provisions of the contract provides that the buyer may request personal property be conveyed by absolute bill of sale.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that no action be taken against the licenses of Ciccarelli and Moreau. DONE and ORDERED this 17th day of March, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 1001, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 1980. COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Harvey R. Klein, Esquire 333 North West Third Avenue Ocala, Florida 32670
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Florida Real Estate Appraisal Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Iris Adames, is now and was at all times material hereto, a registered real estate appraiser in the State of Florida, having been issued license number RI0003454. On or about March 21, 1996, Respondent filed an application (dated March 8, 1996) with the Department for licensure as a registered real estate appraiser. Pertinent to this case, item 11 on the application required that Respondent answer yes or no to the following question: Have you ever 1) been convicted of a crime, 2) pled nolo contendere to any crime? (This question applies to any violation of any municipality, county, state, or nation, including traffic offenses --but not parking, speeding, inspection, or traffic signal violations-- regardless of whether you were placed on probation, had adjudication withheld, were paroled or were pardoned.) Respondent responded to the question by checking the box marked "N[o]." The application concluded with the applicant's signature immediately below the following affirmation: . . . I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. . . . Contrary to Respondent's response to item 11 on the application, the proof demonstrates that on October 23, 1995, Respondent pled nolo contendere to the crime of uttering a worthless check, a first degree misdemeanor, in the Circuit Court, Eighteenth Judicial Circuit, Brevard County, Florida, Case No. 94-23154-CF-A. The court entered an order withholding adjudication of guilt, placed Respondent on probation for a period of six months, and imposed a fine and costs totaling $105.65. On September 18, 1997, the Florida Department of Business and Professional Regulation, Division of Real Estate (Florida Real Estate Commission or FREC) issued an Administrative Complaint against Respondent, as a licensed real estate salesperson. That complaint alleged, in pertinent part, as follows: At the time Respondent made application for a real estate license, Respondent was asked to indicate whether or not [s]he had "ever been convicted of a crime, found guilty, or entered a plea or nolo contendere (no contest), even if adjudication was withheld. This question applies to any violation of the laws of any municipality, county, state, or nation . . . without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned." Respondent checked the "No" box. (Licensure Application, at Question 9). Respondent swore and attested that all answers and information contained in h[er] application were true and correct. Respondent's signature was duly notarized. On or about October 23, 1995, Respondent entered a plea of nolo contendere to one count of writing a worthless check, a first degree misdemeanor (§ 832.05, Fla. Stat.) A true and correct copy of the Order of Judgment is attached hereto, incorporated herein and made a part hereof by reference as Administrative Complaint Exhibit 2. Further, in connection with this investigation, mail addressed from Petitioner to Respondent was returned by the U.S. Postal Service noting that Respondent has moved without any forwarding address. COUNT I Based upon the foregoing, Respondent is guilty of obtaining a license by means of fraud, misrepresentation, or concealment in violation of § 475.25(1)(m), Fla. Stat. COUNT II Based upon the foregoing, Respondent is guilty of failing to timely advise Petitioner of a change of mailing address in violation of Rule 61J2-10.037, Fla. Admin. Code and, therefore, in violation of § 475.25(1)(e), Fla. Stat. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission to issue a Final Order as final agency action finding the Respondent(s) guilty as charged. The penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any of or all of the above penalties as provided by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. In addition to the foregoing, Petitioner requests an award of costs as provided by § 455.227(3), Fla. Stat. Respondent did not formally respond to the Administrative Complaint and on February 18, 1998, the Florida Real Estate Commission held a hearing on Petitioner's Request for an Informal Hearing and Motion for Final Order. Respondent was served with a copy of the notice of hearing and failed to appear. By final order dated February 18, 1998, and filed March 9, 1998, the Florida Real Estate Commission resolved the case, as follows: Upon a complete review of the evidence presented by the Department of Business and Professional Regulation, Division of Real Estate, the Florida Real Estate Commission finds: That the Respondent was properly served with the Administrative Complaint and failed to request a hearing or otherwise respond to the service of Administrative Complaint. See s. 120.60(5), Florida Statutes, and Rules 28- 5.111 and 28-6.009, Florida Administrative Code. That there are no disputed issues of material fact and, therefore, the Petitioner's Motion for an Informal Hearing, pursuant to s. 120.57(2), Florida Statutes, is granted. That the Petitioner has established a prima facie case. That the facts and legal conclusions contained in the Administrative Complaint are adopted as true and that violations of Chapter 475, Florida Statutes, have occurred, as stated in the Administrative Complaint, a copy of which is attached hereto as Exhibit A and made a part hereof. Therefore, the Commission ORDERS that the license of Iris Amor Adames be revoked. This Order shall be effective on date of filing with the Clerk of the Department of Business and Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, at Suite 309 North Tower, 400 West Robinson Street, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal. In her response to Count I of the Administrative Complaint, and again at hearing, Respondent explained she entered the plea of nolo contendere to the worthless check charge based upon advice of her court-appointed counsel even though (in her opinion) she was innocent of the charge. As for her negative response to the question posed on the application, Respondent averred she understood the judge to have directed her attorney to have her records sealed, she assumed he had done as directed, and consequently gave what she understood was an appropriate response to the question on the application. See Section 943.059(4), Florida Statutes. Here, Respondent's explanation for her failure to disclose her plea on her application is credited, and it is resolved that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing the application. In so concluding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter (and the propriety of her response to the question on the application) was, given her unfamiliarity with such matters, reasonable. 1/ Count II of the Administrative Complaint sought to take disciplinary action against Respondent based on the Final order of the Florida Real Estate Commission (FREC) which had disciplined (revoked) Respondent's licensure as a real estate sales person. As heretofore noted, that final order was premised on Respondent's failure to respond to a two-count Administrative Complaint. Count I was predicated on the same issue raised by the Department in the instant case, and Count II was premised on Respondent's "fail[ure] to timely advise [FREC] of a change in her mailing address." Here, Respondent explained her failure to respond to the FREC complaint as follows: . . . when I called Tallahassee, they told me that you have 48 hours to respond, or get a lawyer. I say excuse me, I cannot just go and get a lawyer. Because, why? Because, now in 1998, since December 1997, I've been into a domestic violence case, and I almost -- Me and my daughter almost got killed. And, in the meantime, the father of my child took my car, took every means for me to make my living. I was almost fighting all the time. December, January, February, I was fighting eviction. I was fighting the court. And, all the problems. And, I have all the paperwork here. And, I cannot take more stress. Now, you ask me my life -- My life, and the life of my child is priority. I cannot just go, and hire a lawyer. I don't have the money. I don't have the means. You have to give me more time. And to say that I am sorry it's only 48 hours, you should had [sic] been in response to this before, and that's it. When she told me that, what else can I do? So, I said well, fine. One day I will go back, and try to reopen the case. There is nothing that I can do at this moment. (Transcript, pages 28-30.) With regard to her failure to keep FREC informed regarding her current address, Respondent explained: The reason I didn't keep changing my addresses is because my realtor appraiser license, the person who supervised my work, Gary Eilen, he's the father of my child, he's the person who I get the injunction for. That's why sometimes I just tried to disappear from his life. And, when -- That's one of the complaints that I don't keep moving with my addresses, but he [could] get it from the state [if she informed the state of her new address. Therefore, for safety reasons, she chose not to notify FREC of her new address]. (Transcript, page 39.) Respondent's testimony was candid and credible, and her domestic problems (at the time of the FREC proceeding) well- documented. See Respondent's Exhibit 4. Had Respondent the means and opportunity to contest the FREC complaint, the conclusion of that proceeding would, most likely, have mirrored the conclusions reached in this case. In sum, given the conclusion reached here that (by her response to the application at issue in this case) Respondent did not intend to mislead or deceive the Department, a de minimus penalty should be imposed as a consequence of the FREC Final Order, which was essentially entered by default and premised on the same issue (of non- disclosure) raised in this case (and resolved favorably to the Respondent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent not guilty of violating of Subsection 475.624(12), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further RECOMMENDED that the final order find the Respondent guilty of violating Subsection 475.624(6), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive a reprimand. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1999.
Findings Of Fact Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Herman J. Vis is now and was at all times material hereto a licensed real estate broker in the State of Florida having been issued license number 0475507 in accordance with Chapter 475, Florida Statutes. The last license issued was a broker percentVestige International Services Corp., 654 Madrid Drive, Poinciana, Kissimmee, Florida 34758, a dissolved Florida corporation. On April 6, 1992, the Division of Land Sales filed a Notice to Show Cause directed to Respondent for violations of Chapter 498, Florida Statutes. Respondent admitted the violations and requested an informal hearing, pursuant to Section 120.57(2), Florida Statutes. Following an informal hearing, on July 30, 1992, the Department of Business Regulation, Division of Florida Land Sales, Condominiums and Mobile Homes entered a Final Order directed to the Respondent which found Respondent had violated Sections 498.023(1) and (2), Florida Statutes and imposed a fine of $2,500 and administrative costs of $1,500 for a total of $4,000 to be paid by him within 45 days from the date of the order. Respondent failed to comply with the Final Order and the Division sought and obtained a Final Judgment in the Second Judicial Circuit of Florida. Following notice and an opportunity to be heard, the Final Judgment, dated September 28, 1993, directed Respondent to comply with the Final Order and pay an additional civil penalty of $1,000. Respondent has a duty imposed by law to pay the civil and administrative fines and costs and has failed to do so. As of the date of this Order, Respondent has paid neither the $2,500 civil penalty nor the administrative cost of $1,500. The civil judgments in favor of the Petitioner have not been satisfied. Respondent's explanation of his misunderstanding of the law and his good intentions does not relieve him of his obligation to comply with the Final Order and Final Judgment.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: The Florida Real Estate Commission issue and file a Final Order finding the Respondent guilty of violating Subsections 475.25(1)(b) and (e), Florida Statutes, as charged in the Administrative Complaint. The Final Order should further direct that all of Respondent's real estate licenses, registrations, certificates and permits, be suspended for a period of five (5) years or until such time as Respondent satisfies the judgments in favor of the Florida Department of Business and Professional Regulation, Division of Land Sales, whichever occurs first. Should Respondent satisfy the said judgments within the time allowed, then Respondent's real estate licenses, registrations, certificates and permits, should thereafter be placed on probation for a period of one (1) year with such terms and conditions as the Commission may deem appropriate and should include the payment of a five hundred dollars ($500) administrative fine to be paid by the Respondent within his probationary period. Should all said judgments and fines not be satisfied within the above time allowed, then all Respondent's real estate licenses, registrations, certificates and permits shall be, in accord with the Commission's penalty guidelines, permanently revoked. DONE and ENTERED this 25th day of May, 1994, in Tallahassee, 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 25th day of May, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1-7 Respondent's proposals. Respondent submitted, in letter form, a restatement of the testimony of witnesses or disputation of that testimony. Said comments cannot be ruled on individually, but have been reviewed and considered. COPIES FURNISHED: James H. Gillis, Esquire Florida Department of Business and Professional Regulation Division of Real Estate Legal Section - Suite N 308 Hurston Building North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Herman J. Vis (pro se) 654 Madrid Drive Kissimmee, Florida 34758 Darlene F. Keller Division Director Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900
Findings Of Fact The Defendant, Theodore Michael Lakos, was at all material times, registered with the Florida Real Estate Commission as a real estate salesman. On or about April 20, 1976, a Second Amended Information was filed by the State Attorney for the First Judicial Circuit of Florida against Theodore Michael Lakos, and others in the Circuit Court of Escambia County, Florida. A copy of the Second Amended Information was received in evidence at the hearing as Plaintiff's Exhibit 2. On or about August 25, 1976, Theodore Michael Lakos withdrew his previous plea of not guilty of the charges, and entered a plea of nolo contendere to Counts 1, 2, 3, 4, 6, 8, and 10 of the Second Amended Information. On or about November 9, 1976, Theodore Michael Lakos was adjudicated guilty of the charges alleged in Counts 1, 2, 3, 4, 6, 8, and 10 of the Second Admended Information. Sentencing was stayed for a period of ten years, during which time the Defendant will be on probation under the supervision of the Florida Parole Commission. A copy of the Judgment and Sentence was received in evidence at the hearing as Plaintiff's Exhibit 4. In accordance with the Defendant's plea of nolo contendere, and the court's judgment, it is found that the Defendant, Theodore Michael Lakos, did knowingly, unlawfully and feloniously agree, conspire and confederate with others to commit the felony of breaking and entering, in violation of Sections 833.04 and 810.01, Florida Statutes, as charged in Count 1 of the Second Amended Information. It is found that the Defendant, between March 1, 1975, and up to and including, on or about March 28, 1975, knowingly, unlawfully and feloniously agreed, conspired, and confederated with others to commit the felony of grand larceny, in violation of Sections 833.04 and 811.021, Florida Statutes, as charged in Count 2 of the Second Amended Information. It is found that the Defendant between, on or about March 1, 1975, ad up to and including, on or about March 28, 1975, knowingly, unlawfully and feloniously agreed, conspired and confederated with others to commit the felony of first degree larceny, in violation of Sections 833.04 and 806.01, Florida Statutes, as charged in Count 3 of the Second Amended Information. It is found that the Defendant, between on or about March 29, 1975, and up to and including on or about April 18, 1975, knowingly, unlawfully and feloniously agreed, conspired, and confederated with others to commit the felony of grand larceny in violation of Section 833.04, and 811.021, Florida Statutes, as charged in Count 4 of the Second Amended Information. It is found that the Defendant, on or about March 28, 1975, aided, abetted, counselled, or otherwise procured as a principal in the first degree the commission of a felony, to wit: breaking and entering, in that he aided, abetted, counselled, or otherwise procured others to unlawfully break and enter a dwelling house with intent to commit a felony, to wit: grand larceny in violation of Sections 776.011 and 810.01, Florida Statutes, as charged in Count 6 of the Second Amended Information. It is found that the Defendant on or about March 28, 1975, aided, abetted, counselled or otherwise procured as a principal in the first degree, the commission of a felony, to wit: grand larceny, in that he aided abetted, counselled, or otherwise procured others to unlawfully take, steal, and carry away certain property of the aggregate value of more than one hundred dollars, in violation of Sections 776.011 and 811.021, Florida Statutes, as charged in Count 8 of the Second Amended Information. It is found that the Defendant on or about March 28, 1975, aided, abetted, counselled, or otherwise procured as a principal in the first degree the commission of a felony, to wit: first degree arson, in that he aided, abetted, counselled, or otherwise procured another to willfully and maliciously set fire to a dwelling house in violation of Sections 776.011 and 806.01, Florida Statutes, as charged in Count 10 of the Second Amended Information.
Findings Of Fact Based on the exhibits received in evidence and on the testimony of the only witness called at the hearing, I make the following findings of fact. Respondent is now and was at all times material hereto a licensed real estate salesman in the state of Florida having been issued license number 0447789 in accordance with Chapter 475, Florida Statutes. The last license issued was as a salesman, c/o Commercial Investment Real Estate, Inc., 1804 Riverview Drive, Post Office Box 3847, Indialantic, Florida 32901. On May 12, 1986, in the United States District Court, Western District of Virginia Roanoke, the Respondent was found guilty of one (1) count of conspiracy to distribute drugs and one (1) count of interstate travel to promote illegal activity in violation of federal law, whereupon the Respondent was sentenced to three (3) years confinement, a $5,000 fine, and three (3) years probation upon release from custody. The Respondent timely notified the Florida Real Estate Commission of the felony convictions. As a result of the foregoing convictions, the Respondent is presently confined to a federal prison. Am appeal of the foregoing convictions is presently pending before a federal appellate court. Respondent's wife, who has not been charged with any violations, is presently employed as a licensed real estate salesperson in Florida. Inasmuch as her last name is the same as Respondent's last name, Respondent is concerned that publication in the FREC newsletter of news regarding discipline imposed on Respondent would have a negative impact on his wife's business reputation.
Recommendation Based on all of the foregoing, it is recommended that the Florida Real Estate Commission enter a final order in this case to the following effect: Finding the Respondent guilty of viola- tions of Section 475.25(1)(f) and (n), Florida Statutes, as charged; Suspending the Respondent's license for a period of five (5) years; Providing that in the event the appeal of Respondent's criminal convictions is successful, the suspension of Respondent's license will be rescinded; and Providing that notice of disciplinary action against Respondent will not be published in the Commission's newsletter until the appeal of Respondent's criminal convictions is final, and then only if that appeal is unsuccessful. DONE AND ENTERED this 18th day of March, 1987, at Tallahassee, Florida. M. M. PARRISH 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 18th day of March, 1987. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Mr. James E. Stivers 31492-083 Post Office 600 Dorm 1 F.P.C. Eglin Eglin AFB, Florida 32542 Harold Huff, Executive Director Division of Real Estate Florida Real Estate Commission 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Respondent, on or about January 15, 1979 pled guilty to four counts of grand larceny in the Circuit Court in and for Dade County, Case No. 77-4457A. Count II of the instant Administrative Complaint apparently was based upon the transaction acts alleged in the Information, (Exhibit 1) . The Petitioner voluntarily dismissed Count I of the Administrative Complaint. In support of the allegations in Count II, the Petitioner presented Exhibit 1 consisting of the State Attorney's Information, the Order withholding adjudication in that criminal case, and the Order granting probation. The Petitioner contends that the fact of the plea of guilty to the larceny charges in Circuit Court is sufficient to prove the allegations of misrepresentation, dishonest dealing, and the numerous other acts proscribed by subsection 475.25(1)(a), Florida Statutes (1977) as amended. The Respondent's plea of guilty to the criminal charges was entered into in the Circuit Court as a result of negotiations with the State Attorney whereby the Respondent was assured that adjudication would be withheld, he would be placed on probation, and no felony conviction would appear on the Respondent's criminal record. The negotiations reached fruition in the order of the Circuit Judge dated January 15, 1979 allowing that result. The Petitioner's exhibit 1 does not contain the guilty plea itself, although it is referred to in the judge's order. The State Attorney's Information contained in that exhibit, to which the guilty plea was directed, merely recites the statutorily derived language necessary to make out charges of larceny, but does not refer to the Goldbergs as victims, mentions no specific amounts of money, makes no mention of a purported mortgager-mortgagee relationship, nor does it relate the charges to a real estate transaction in any way. No other evidence in support of the alleged violations of Section 475.25(1)(a) Florida Statutes (1977) was adduced.
Recommendation Having considered the evidence in the record, the foregoing Findings of Fact and Conclusions of Law, and arguments of counsel, it is therefore RECOMMENDED that the Respondent be found not guilty and that the Adiainistrative Complaint filed in this cause be dismissed, and Case No. 80-1721 be closed. DONE and ENTERED this 22nd day of January, 1981, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1981. COPIES FURNISHED: Salvatore A. Carpino, Esquire Assistant General Counsel Department of Professional Regulation Board of Real Estate 130 North Monroe Street Tallahassee, Florida 32301 Julian R. Benjamin, Esquire Executive Suite DuPont Plaza Center 300 Biscayne Boulevard Way Miami, Florida 33131
Findings Of Fact The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received. Mr. Edwards never received any payment of the debt owed by the Respondent. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard Fernandez, be revoked. DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Joseph Matrascia, Respondent, is registered with FBRE as a broker- salesman and was so registered at all times here involved. On 22 September 1976, Respondent was found guilty in the Circuit Court of the 11th Judicial Circuit in and for Dade County, of the offense of receiving stolen property (Exhibit 1) and of obstructing an officer in the service of process. He was sentenced to two years confinement in the State penitentiary followed by a 6 months sentence and three years probation. This judgment was affirmed on appeal. Petitioner is presently attempting to obtain a new trial on the basis of newly discovered evidence.
Findings Of Fact Based upon my observation of the witness and their demeanor while testifying, the following; relevant facts are found. Mitchell E. Verdell is registered with the Florida Board of Real Estate as a salesman. On or about July 17, 1978, the Respondent, Mitchell E. Verdell, filed with the then Florida Real Estate Commission, now Board of Real Estate, an application for registration as a Real Estate Salesman. (Petitioner's Composite Exhibit 2.) On the Respondent's application for licensure, he failed to disclose that he had been arrested in Daytona Beach, Florida, on May 7, 1974, and tried for unlawful possession of marijuana. Respondent entered a plea of guilty to possession of a controlled substance over five (5) grams for which he was place on probation for a period of two (2) years and an adjudication of guilt was withheld. (Petitioner's Exhibit 3.) Mitchell E. Verdell appeared and testified that his only witness, his probation officer, was ill and thus could not appear at the hearing. Mr. Verdell acknowledged his failure to disclose on his application for licensure with the Board the fact that he appeared in court on a charge of possession of a controlled substance. He also acknowledged the fact that he was placed on two (2) years probation. His probation officer, Bill Gross, advised Mr. Verdell with reference to his conviction and the manner in which he should handle it that since the judge withheld adjudication, he should never disclose it for a job when questions respecting his arrest were asked. He testified that he relied on Officer Gross, who bad been a probation officer for a few decades. (TR 9-10)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Respondent, Mitchell E. Verdell's license to practice real estate as a salesman be REVOKED without prejudice to filing an application that is proper. RECOMMENDED this 11th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Fred Langford, Esquire Department of Professional Regulation Board of Real Estate Post Office Pox 1900 Orlando, Florida 32802 Glenn Anderson, Esquire Post Office Pox 9159 Winter Haven, Florida 33880
