Findings Of Fact 1. The evidential facts in this cause are presented by a joint stiulation between the parties. That stipulation is made a part of the record herein. The exhibits referenced as being attached to the stipulation are not actually attached, but are available for review in the Petitioner's file, by agreement of the parties. The following is a recitation of the stipulation.
Recommendation It is recommended that the license held by the Respondent, Manhattan Liquors, Inc., t/a Manhattan Liquors, license no. 39-1086, series 4-COP, be revoked. DONE AND ENTERED this 28th day of December, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire 725 South Bronough Street Tallahassee, Florida 32304 Joseph G. Spicola, Jr., Esquire Spicola and Larkin, P.A. 806 Jackson Street Tampa, Florida 33602
Findings Of Fact Petitioner's application for licensure as a real estate salesman reveals that he was born in Miami, Florida, in 1960. In 1979 Petitioner asked a friend to take him to a department store so he could do some shopping. While Petitioner was inside the store shopping, his friend was stealing hub caps in the parking lot until he was caught by the police who arrested both Petitioner and his friend. Petitioner was charged with grand larceny from a building and possession of a barbiturate (methaqualone), but the charges were dropped. In 1981 Petitioner borrowed a car from an acquaintance in order to go out on a date. While Petitioner was driving the car, he was stopped for a traffic violation at which time it was discovered that the borrowed car was a rental car which had been stolen. Although Petitioner was arrested for vehicular theft of an automobile, that charge was dismissed. In 1984 while Petitioner was attempting to locate the home of a friend, he stopped at a house which turned out to. be on the wrong street. As he was returning from the front door of the house to his car, he was stopped by the police. Since the home was located in a neighborhood subject to burglaries and Petitioner did not live in that neighborhood, he was arrested and charged with trespassing and with loitering and prowling. Pursuant to the advice of his public defender, Petitioner plead to one of those charges adjudication was withheld on that charge and the other charge was dropped. Petitioner was not placed on probation and no fine was imposed on him although he believes that he paid court costs. Petitioner disclosed all of the above-described arrests to Respondent in his application for licensure although the application seeks information regarding convictions and not arrests where no conviction or adjudication ever occurs. For the past five years Petitioner has been employed by United Cerebral Palsy. His duties include vehicle maintenance, building maintenance, and lawn maintenance for two group homes. He receives weekly advances from his employer for purchasing supplies. Petitioner has been married for approximately one year.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered approving Petitioner's application for licensure as a real estate salesman, subject to the successful completion of any required examination. DONE and RECOMMENDED this 19th day of November, 1985, at Tallahassee, Florida. LINDA M. RIGOT, Hearing OFficer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1985. COPIES FURNISHED: Bernard Stefon Gonzalez Post Office Box 610104 North Miami, FL 33261 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street Orlando, FL 32801 Harold Huff, Executive Director Division of Real Estate 400 West Robinson Street Orlando, FL 32801| Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301
The Issue Whether the Respondent committed the violation alleged in the Administrative Complaint dated September 17, 1998, and if so, the penalty that should be imposed.
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 Department is the state agency charged with the responsibility for investigating and prosecuting complaints pursuant to Chapters 455 and 475, Florida Statutes (1997). The Florida Real Estate Commission operates within the Department and is the entity directly responsible for licensing and disciplining persons licensed under Chapter 475, Florida Statutes (1997). Section 475.02, Florida Statutes (1997). The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes (1997). Mr. Lista is, and was at all times material to this proceeding, a licensed real estate salesperson, having been issued Florida license number SL-0647732. Mr. Lista's license is currently on inactive status. Mr. Lista submitted to the Department an Application for Licensure as a Real Estate Salesperson dated January 14, 1997, and received by the Department on January 27, 1997. Question number 9 on the application requests that the applicant answer "Yes" or "No" to the following: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Mr. Lista answered "No" to question number 9 on the application for licensure. He signed his name below the Affidavit of Applicant, which provides as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division of Administrative Hearings or its representatives, by him/her in response to inquiries concerning his/her qualifications. Mr. Lista's signature was notarized, and he submitted the application to the Department in January 1997. The Department approved Mr. Lista's application and issued a Florida real estate salesperson license. The Department subsequently learned that, on December 10, 1985, Mr. Lista pleaded guilty to one misdemeanor charge of Disorderly Intoxication, one misdemeanor charge of Resisting an Officer Without Violence to His Person, and one misdemeanor charge of Assault. Adjudication was withheld by the court, and Mr. Lista was sentenced to probation for a period of six months. Mr. Lista was represented by an attorney in the criminal proceedings, who appeared in court and handled the matter for Mr. Lista. At the time of the final hearing, Mr. Lista recalled being arrested, going to the police station, and being released after about 30 to 45 minutes without having to post bond, and he recalled the details of the 1985 incident leading to his arrest. Mr. Lista also recalled receiving copies of the dispositions of the criminal charges against him. Mr. Lista testified that, at the time he was filling out the application for licensure, he did not recall the guilty pleas and the sentence of probation because the incident had happened 12 years previously. The evidence presented by the Department is sufficient to establish with the requisite degree of certainty that Mr. Lista misrepresented his criminal history by answering question number 9 in the negative. At the very least, the evidence supports a finding that Mr. Lista acted carelessly in answering question number 9 in the negative; certainly, had he reflected for a few moments, he would have recalled the 1985 incident, as well as the guilty pleas and sentence of probation.
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 that Emilio Daniel Lista is guilty of violating Section 475.25(1)(m), Florida Statutes (1997); suspending his real estate salesperson license for a period of one year; and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 14th day of July, 2000, 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 14th day of July, 2000.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The respondent Juan A. Vergel is the holder of Florida real estate salesman's license No. 0359274. This license was received pursuant to respondent's application for licensure dated December 8, 1980, and approved on January 28, 1981. In response to question number 6 on his application for licensure as a real estate salesman, respondent answered "No." This question read as follows: "Have you ever been arrested for, or charged with the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking speeding, inspection or traffic signal viola tions), without regard to whether convicted, sentenced, pardoned or paroled?" On or about February 5, 1975, respondent was arrested by the Public Safety Department of the Dade County Sheriff's Office on the felony charge of buying, receiving and concealing stolen property; to wit: an automobile inspection sticker. On February 24, 1975, respondent pled guilty to a reduced misdemeanor charge of buying, receiving and concealing stolen property, was adjudicated guilty and was ordered to pay a fine of $50.00 by the County Court of Dade County, Florida. At the time of this adjudication, respondent was of the impression, from discussions with his attorney, that if he maintained a record without any charges of criminal activity for a period of nine months, the arrest and conviction on the misdemeanor offense of buying, receiving and concealing stolen property would be expunged from his record. Having had no criminal charges against him after this incident, respondent assumed at the time he completed his application for a real estate license that his record had been cleared. Other than the offense described in paragraph 3 above, respondent has never had criminal charges against him. He has been employed as a computer operator with the Dade County School Board for eleven years and has had no problems in such employment.
Recommendation For the reasons stated above, it is RECOMMENDED that the Administrative Complaint filed against the respondent Juan A. Vergel be DISMISSED. Respectfully submitted and entered this 23rd of October, 1981, in Tallahassee, Florida. DIANE D. TREMOR 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 23rd day of October, 1981. COPIES FURNISHED: Michael Colodny, Esquire Colodny and Fass, P.A. 626 N.E. 124 Street North Miami, Florida 33161 Samuel Sheradsky, Esquire 606 Coconut Grove Bank Building 2701 South Bayshore Drive Miami, Florida 33133 Frederick H. Wilsen, Esquire Department of Professional Regulation Board of Real Estate 130 North Monroe Street Tallahassee, Florida 32301 Juan A. Vergel 12510 Southwest 33rd Street Post Office Box 650971 Miami, Florida 33165 Carlos V. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Orlando, Florida 32789
The Issue Whether Respondent is guilty of the offenses set forth in the Administrative Complaint, and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is the Division of Real Estate of the Department of Professional Regulation. As such, Petitioner acts as the licensing and regulatory agency for real estate salesperson licensees. The Respondent is Jack Wilson Johnson, holder, at all times pertinent to these proceedings, of license number 0636049 issued by Petitioner. His license is currently inactive. His address is c/o Jack Lu, Inc., 8445 Pensacola Boulevard, Pensacola, Florida 32534. On or about February 26, 1996, Respondent submitted an application to Petitioner for licensure as a real estate salesperson. Question number 9 on the application read as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of any other state, you are responsible for verifying the expungement or sealing prior to answering “NO.” If you answered “Yes,” attach details including dates and outcome, including sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not understand the question, consult with an attorney or the Division of Real Estate. Respondent marked the “NO” box beside this question. Respondent then signed the “Affidavit of Applicant.” Above his signature was printed the following language. The above named, and undersigned, applicant for licensure as a real estate sales person under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) has carefully read the application, answers, and attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and recollection permit, without any evasions or mental reservations whatever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. On or about July 6, 1989, Respondent pled nolo contendere to reckless driving in Santa Rosa County, Florida, and was adjudicated guilty with a sentence of 6 months probation. Later, Respondent pled nolo contendere to a second charge of reckless driving on or about February 21, 1991. On or about January 19, 1994, Respondent pled guilty to violation of his probation on this charge. On or about March 8, 1993, Respondent pled nolo contendere to Battery in Escambia County, Florida. Adjudication was withheld. On or about May 1, 1974, Respondent pled nolo contendere to three counts of failure to register as a dealer or salesman, a felony, in Escambia County, Florida. Respondent admitted at the final hearing that he was guilty of answering “NO” to question number 9 on the application that he made to Petitioner in this case, but that this action was merely a result of “poor judgment.” Respondent offered mitigating testimony by two witnesses, establishing that he had handled real estate transactions for them to their satisfaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint and revoking his license. DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack Wilson Johnson c/o Jack Lu, Inc. 8445 Pensacola Boulevard Pensacola, Florida 32534 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Based upon my observation of Respondent, and his testimony during the proceeding herein, the documentary evidence received, including a prehearing stipulation executed by counsel for the parties and the entire record compiled herein, the following relevant facts 1/ are found. Respondent, Stewart Sax, is a real estate salesman who holds License No. 0347241. Respondent is presently employed by Choice Rentals and Realty Corporation, 3365 North Federal Highway, Fort Lauderdale, Florida. The prosecution of this matter was initiated by Petitioner against Respondent based on an Administrative Complaint filed herein, signed August 3, 1981. On July 24, 1980, Respondent submitted an application for licensure with the Petitioner. In connection therewith, Respondent answered question No. 6 in the negative by asserting "No." That question reads in total: Have you ever been arrested for, or charged with commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violation), without regard to whether convicted, sentenced, pardoned or paroled? Respondent was first arrested on April 21, 1972, when he was charged with credit card theft in Atlanta, Georgia. At this time, he was approximately 22 years old and was a student at Emory University in Atlanta, Georgia. Respondent pled nolo contendere to the charges and received three years probation and a $500.00 fine based upon this plea. Respondent contends that the credit card belonged to a girl friend's mother and he initially had the right to use that credit card. Respondent was next arrested on January 25, 1974, when he was arrested for credit card theft, public indecency and public drunkenness in Atlanta. The charges on the first two counts were dismissed and Respondent received a 30-day suspended sentence on the public drunkenness charge. Respondent was next arrested on July 24, 1980, in Fort Lauderdale, and was charged with grand larceny and issuing a worthless check. The worthless check charge was nolle prosequi and the grand larceny charge was reduced to petty theft, to which Respondent pled no contest. Respondent was placed on probation for six (6) months; he paid $50.00 court costs and adjudication of guilt was withheld. On July 24, 1980, Respondent was again arrested for driving while intoxicated and with an expired driver's license. No information was issued on the driving while intoxicated charge and Respondent pled no contest to the expired driver's license charge. He paid $25.00 for court costs and adjudication was withheld. Finally, Respondent was arrested on July 30, 1980, and charged with prowling in Fort Lauderdale, Florida. These charges were dismissed. Respondent contends that he was under a great deal of pressure when he submitted his application for licensure and was of the opinion, based on representations of his former counsel, that he did not have to reveal these matters on applications, etc.; that these matters were dropped, and would not follow him in the future. (Prehearing Stipulation) As noted above, the matter was presented based upon a prehearing stipulation, prepared by counsel for the parties whereby Respondent admitted each of the allegations as contained in the Administrative Complaint with explanations for each allegation. Evidence presented at the hearing indicated that, except for the Public drunkenness charge, all remaining charges were either nolle prosequi, dismissed without any information being filed or adjudication was withheld and sentences were probated. Respondent has enjoyed success in his field as a real estate salesman since he has been licensed. Respondent as far as the record reveals, has not had any disciplinary charges brought against him since he has been licensed as a real estate salesman. Other professionals in the area have a high regard for Petitioner, both personally and professionally as a real estate salesman. Respondent is a highly intelligent real estate salesman who, it can be assumed, understood the application for licensure which he executed to become a real estate salesman. Based on the admissions contained in the prehearing stipulation and Respondent's testimony, his failure to truthfully answer all questions on his application, he (Respondent) violated the provisions of Chapter 475.17(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's real estate License No. 0347241 be REVOKED. That Respondent be afforded an opportunity to reapply for a license as a real estate salesman and that pending a decision by the Board on Respondent's reapplication for licensure, the Board spend the revocation referred to in the Recommendation above. RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.
Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
The Issue The issue is whether Respondent is guilty of obtaining his real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Seeking to become a licensed real estate salesperson, Respondent submitted to Petitioner an application on December 16, 1996. One of the questions on the application form asks: 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? . . . [Bold] If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. [End Bold] Respondent checked "yes," but failed to attach the details or otherwise describe them on the form. As alleged, Respondent pleaded no contest to driving under the influence in July 1991, and he was adjudicated guilty. He was placed on supervised probation for one year and lost his driving privileges for six months. As alleged, Respondent pleaded no contest to the traffic misdemeanor of reckless driving and misdemeanor possession of under 20 grams of marijuana in June 1995. He was adjudicated guilty of reckless driving, and adjudication was withheld as to possession of marijuana. He was fined $630 and court costs for reckless driving. In completing the application, Respondent realized that he would have to supply the details of the criminal offenses, of which he admitted when he checked the "yes" box. However, he set aside the application for a week or two, and, when he picked it up again to finish, he forgot about the need to attach a supplement. He thus sent it in incomplete and with a personal attestation that it was complete. Despite the obvious omission from the application, Petitioner issued Respondent a real estate salesperson's license without requesting further information concerning the criminal offenses. Respondent took the licensing examination on February 17, 1997. Passing the examination, he received his license shortly after it was issued on March 24, 1997. The next contact between the parties was when Respondent received a letter, dated February 25, 1998, from Petitioner noting that the Florida Department of Law Enforcement had informed Petitioner of an arrest for the latter criminal offenses. The letter states: "To clear any ambiguity regarding your 'YES' response to the relevant application question, we request additional information." The letter also requests an explanation regarding Respondent's failure to disclose this information on his application form. The letter concludes that Respondent's application would be held in abeyance until receipt of the requested information. By letter dated March 9, 1998, Respondent explained the circumstances surrounding the latter offenses, saying that he had not disclosed the information on the original application due to embarrassment. The letter does not mention the earlier criminal offense of driving under the influence. Respondent testified at the hearing that he claimed embarrassment because he did not think that it would sound as good to say that he had forgotten about the need to add the supplement to his application. This testimony is credited. It is impossible to infer an affirmative misrepresentation or attempt to conceal in the initial application. Respondent disclosed a criminal offense, and it was abundantly clear on the face of the short application form that he had failed to describe the disclosure, as requested to do so. Perhaps Petitioner's employees missed the box checked "yes" or, finding it, forgot to follow up on the matter. Clearly, though, Respondent sufficiently disclosed the matter to preclude a finding, on these facts, of any misrepresentation or intent to conceal. Respondent's March 9 response to the February 25 letter is a different matter. Although the February 25 letter focuses its inquiry upon the latter criminal offenses and does not request a comprehensive response to the question of criminal offenses, Respondent could have also mentioned the earlier offense. This would have negated any inference whatsoever of an affirmative misrepresentation or intent to conceal in the application or at this later stage. However, even considering the shortcoming of the February 25 response, the facts still do not support the finding, by clear and convincing evidence, that Respondent intentionally concealed the criminal offenses in his application. As to the omission from the February 25 letter as a basis for discipline in itself, the Administrative Complaint does not charge Respondent with anything arising directly out of the contents of his February 25 letter. Likewise, Petitioner's proposed recommended order does not even mention Respondent's February 25 response.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 1998. COPIES FURNISHED: Ghunise Coaxum, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Warren Keith Babb, pro se 2310 Southwest 53rd Street Cape Coral, Florida 33914 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issues for consideration are those presented by an Administrative Complaint brought by the Commissioner of Education against Respondent. In that complaint, Respondent is accused of violating Section 231.28(1), Florida Statutes, by obtaining his extended Teacher's Certificate by fraudulent means. A similar allegation is made related to Rule 6B-1.06(5)(a)(g) and (h), Florida Administrative Code. A second category of allegation pertains to a violation of Section 231.28(1), Florida Statutes, based upon the fact that Respondent has been guilty of a misdemeanor, and has been guilty of personal conduct which seriously reduces his effectiveness as an employee of the Duval County School Board.
Findings Of Fact James Robert Stephens has held a Teacher's Certificate since 1972 issued by the State of Florida. The certificate was renewed in July 1977 and a further extension was granted on August 2, 1982. This is a regular certificate issued in the fields of social studies and elementary education: In applying for the August 2, 1982, extension of the certificate, Respondent answered in the negative when asked the question "Have you ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation or are there any criminal charges now pending against you other than minor traffic violation?" That answer was not true and the Respondent recognized that he was answering the question in an untruthful way at the time of giving his response. In fact, as he knew, the Respondent had been arrested on July 26, 1971 and charged with DWI and fined $100 for that offense. Again, on January 12, 1978, he was charged with the offense of DWI and pled no contest to that offense on July 23, 1978, for which he received a $200 fine. Respondent's explanation in the course of the hearing that he did not answer this question in the affirmative because he felt that the certifying agency with the State of Florida had been told of those offenses by local authorities in Duval County is not accepted. On May 22, 1983, the Respondent was in a drinking establishment in Jacksonville, Florida. After having consumed alcoholic beverages, he was involved in an altercation with another person in the bar, causing the management of the establishment to seek the assistance of law enforcement. When the police officer arrived at the scene, the Respondent was uncooperative and verbally abusive, in the sense of using profanity. As a consequence, the Respondent was arrested for disorderly intoxication, an offense for which he pled no contest and was fined $100. As established by testimony of the arresting officer, Michael S. Berry and Dalton Epting, Duval County School District Administrator, the conduct by the Respondent in the bar is not in keeping with the conduct expected of a teacher in Duval County. In particular, Epting as an educator, established that this kind of conduct sets a poor example for children whom the education profession is responsible for.
Findings Of Fact The Respondent, Robert Thomas Brown, is registered with the Board of Real Estate (hereafter "Board") as a real estate salesman. The Respondent's application for registration was approved by the Board, and on December 22, 1978, he was issued a salesman's license. Question 6 of the Respondent's application filed with the Board reads as follows: Have you ever been arrested for, or charged with, the commission of an offense against the laws of municipality, state or nation including traffic offenses, (but not parking, speeding, inspection or traffic signal violations) without regard to whether convicted, sentenced, pardoned or paroled? In response to this question, the Respondent inserted the work "no." The Respondent knew the answer he supplied to Question 6 was false because of a prior arrest and conviction for burglary in Kent County, Delaware in 1967. The Respondent was adjudicated guilty and received a one year suspended sentence. The Respondent was served with a copy of the Notice of Hearing in this proceeding by certified mail on or about October 29, 1979.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Respondent's real estate salesman's license be revoked. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of November 1980. SHARYN S. SMITH 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 14th day of November 1980. COPIES FURNISHED: John Huskins, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Robert Thomas Brown 604 Avenue "E" Southeast Winter Haven, Florida 33880 Robert Thomas Brown Post Office Box 612 Winter Haven, Florida 33880 C. B. Stafford, Executive Director Florida Real Estate Commission 400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802
