Findings Of Fact Jeralne C. Burt is registered with the Florida Board of Real Estate as a salesperson and was so registered at all times here involved. In the fall of 1977, Barbara Rogers came to Respondent's home seeking to purchase residential real estate and was shown several houses by Respondent. One of these houses she agreed to purchase. When asked how she wanted the contract made out, Barbara Rogers said make the contract in the name of Louise Rogers, her sister. The contract to purchase was prepared and given to Barbara Rogers to have executed. When this contract (Exhibit 1) was returned to Respondent it was signed Louise Rogers as the buyer, but the signature was not witnessed. After being assured that Louise had signed the contract to purchase, Respondent signed as a witness to the previously unwitnessed signature of Louise Rogers. At the time this offer was executed by the buyer, Respondent understood that Barbara Rogers was putting up the money for the cash required over the mortgage. Thereafter, Louise Rogers proceeded to the bank where the necessary documents were executed to qualify for an FHA morgage on the property. At the designated closing date Respondent drove to Barbara Rogers' house where Barbara was picked up and they went to the place Louise worked to pick her up. Louise came out to the car and told Respondent that she couldn't get off work and that Barbara could sign the papers for her. When Respondent said she thought Louise should come to the closing to sign, Louise replied that she and her sister signed each other's names all the time and that it was all riht for Barbara to execute the papers. Respondent and Barbara Rogers proceeded to the closing. No one inquired if Barbara Rogers was Louise Rogers, nor was she ever introduced as Louise Rogers. At the closing Barbara Rogers signed Louise Rogers' name on the various documents presented for signature. Due to the house requiring some repairs the closing was kept in escrow for approximately one week to ten days. During this escrow period the mortgage processor at the Barnett Bank, who had processed the application of Louise Rogers, received a phone call from a woman identifying herself as Louise Rogers inquiring when the closing on the house was to take place. When Louise Rogers said she had not executed any papers for the closing the bank officials quickly re-assembled the parties and this time all documents were executed by the real Louise Rogers. Although Respondent realized Louise Rogers should have signed the documents at closing, because of Louise's insistence that Barbara could sign for her and Respondent's previous experience of signing her grandmother's name for her the past two years of her grandmother's life, Respondent assumed the authorization for Barbara to sign Louise's name had been given.
The Issue Whether Petitioner's application for licensure as a real estate sales associate or broker should be granted.
Findings Of Fact The Parties Petitioner, who was 49 years old at the time of the final hearing in this cause, is an applicant for licensure as a real estate sales associate or broker. Respondent Florida Real Estate Commission is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. Petitioner's Criminal History On April 15, 1986, Petitioner was arrested in Middleton, New York, for the charge of second degree assault. Petitioner ultimately pleaded guilty to the reduced charge of third degree assault and was ordered to pay a fine of $300. In or around June 1990, the State Attorney for Florida's Fifteenth Judicial Circuit charged Petitioner, in case number 91-239207, with one count of burglary of a dwelling (a second degree felony), three counts of grand theft (each a third degree felony), and two counts of dealing in stolen property (each a second degree felony). Subsequently, on August 14, 1991, Petitioner pleaded guilty to each of the foregoing charges and was sentenced to eight months of incarceration in the Palm Beach County jail. Approximately seven years later, the United States Attorney for the Southern District of New York indicted Petitioner for wire fraud. On July 8, 1998, Petitioner pleaded guilty to the charge and was sentenced to 30 months of imprisonment, followed by a term of probation (the exact length of which is not established in the instant record). Petitioner was also ordered to pay $745,000 in restitution to the victim(s) of his fraudulent behavior. Subsequently, in or around 2003, Petitioner——having previously completed his prison sentence——fell behind on his restitution payments, at which point the government violated his supervision. As a result, Petitioner was incarcerated for approximately 30 days until his wife's family satisfied the arrearage of $26,230.61. Although not established precisely by the testimony or exhibits, it appears that Petitioner's supervision in connection with the wire fraud charge was terminated in 2005 or 2006 and that the outstanding restitution balance of $500,000 was reduced to a civil judgment. Application for Licensure and Intent to Deny On May 16, 2011, Respondent received Petitioner's application for licensure as a real estate sales associate or broker. In the application, Petitioner properly responded "yes" to question number one, which asked, among other things, if he had ever pleaded guilty or no contest to a crime in any jurisdiction. Subsequently, on May 20, 2011, Respondent advised Petitioner in writing that it required: [T]he full details of any criminal conviction . . . including the nature of any charges, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which the proceeding were held or are pending . . . . (emphasis added). Nearly one month later, on June 17, 2011, Respondent received an eight-page facsimile from Petitioner, which included, in relevant part: the second page of the federal criminal judgment, a document which actually consists of six pages1/ (the other five pages are not part of the record, nor does it appear that they were provided to Respondent); the judgment and sentence in connection with the Florida burglary, grand theft, and dealing in stolen property charges; and, as quoted below, Petitioner's vague explanations of the New York assault charge, Florida offenses, federal mail fraud charge, and probation violation: [New York assault charge] Pled guilty to a fight. Fined $300. [Florida charges] [S]tems from one arrest pled guilty sentenced to 8 months jail time. There is an error in record it looks like several arrest [sic] but it was only one document provided. [Federal wire fraud charge] [A] single charge of wire fraud sentenced to 30 months ordered to pay restitution. [Federal probation violation] I was violated for being unable to keep up with restitution payments was released after paying the sum of $26230.61. On July 16, 2010, Respondent filed its Notice of Intent to Deny Petitioner's application for licensure. The intended denial was based upon the following reasons: B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. G. Convicted or found guilty or entered a plea of nolo contendre to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida. Petitioner's Final Hearing Testimony During the final hearing, Petitioner testified that he has not been arrested since 2003——when he was violated for the restitution arrearage——and that he presently manages an automobile dealership. Regarding his criminal conduct, Petitioner offered very little detail other than a brief explanation that the wire fraud charge involved a scheme in which he ordered laptop computers but never paid for them. Notably, Petitioner expressed no remorse for his conduct, either during his hearing testimony or in the written materials submitted to Respondent during the application process. Further, and equally troubling, Petitioner conceded that he has made no payments whatsoever against the outstanding restitution judgment since 2006. With respect to the Florida burglary, dealing in stolen property, and grand theft charges (to which he pleaded guilty), Petitioner testified that he did not commit a burglary and that he only attempted to pawn items that had been stolen by somebody else——an explanation the undersigned finds dubious at best. Once again, Petitioner expressed no remorse for his criminal misdeeds.2/ As to the present state of his character, Petitioner testified that he now values——and recognizes the importance of—— honesty, a good reputation, and fair dealing. However, other than these self-serving remarks, his present employment, and the absence of any recent arrests, Petitioner offered no persuasive evidence of his honesty or character. Further, no credible evidence was adduced concerning his reputation for fair dealing. Ultimate Factual Findings The undersigned determines, as a matter of ultimate fact, that Petitioner failed to demonstrate that he is honest, trustworthy, of good character, and has a reputation for fair dealing, all of which are requirements for licensure as a real estate professional. Furthermore, the undersigned finds, as a matter of ultimate fact, that the statutory disqualification of eligibility that flows from a guilty plea to one or more crimes involving moral turpitude has not been overcome by way of subsequent good conduct and lapse of time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate or broker. DONE AND ENTERED this 20th day of January, 2012, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 2012.
The Issue The issues are whether Respondent is guilty of obtaining his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 475, Florida Statutes. Respondent is now, and at all times material to this proceeding, was licensed as a Florida real estate broker. He holds real estate broker's license number 3004152. Respondent passed the real estate broker's examination on April 22, 1996. From May 10, 1996, through September 8, 1996, Respondent was an inactive broker. Since September 9, 1996, Respondent has been a land developer and a real estate broker/officer of a real estate brokerage corporation in DeLand, Florida. There have been no prior complaints or disciplinary action against Respondent's Florida license. Respondent is also a licensed real estate broker in Massachusetts since 1966 and in Colorado since 1994. There have been no complaints or disciplinary actions against Respondent's license in those states. In 1981, Respondent sold a boat for $10,000 to a person who failed to make a full payment. About a year later, Respondent made a demand for payment from the buyer. An argument between Respondent and the buyer resulted in a pushing contest. About one month later, Respondent ran a traffic light in Laconia, New Hampshire. The law enforcement officer who stopped Respondent informed him that there was an outstanding warrant for his arrest. Respondent was arrested and released on the same day. Until that time, Respondent was not aware that he had been charged with any offense. Respondent appeared in court with his attorney on October 15, 1982. After pleading guilty to the charge of simple assault, he paid a fine in the amount of $50. Respondent received a sentence of 10 days of jail time, suspended on good behavior, and given a conditional discharge. Respondent filed a application for a Florida real estate broker's license on August 17, 1995. He signed a notarized affidavit on the application form, swearing that his answers and statements were true and correct. The application form contained a question seeking the following information in pertinent part: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? 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. . . . * * * 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. From the record, it is found that Respondent clearly understood question nine. In response to this question, Respondent answered in the negative by marking the "no" box. Respondent asserts that his response was truthful at the time he signed the application because he had no independent recollections of the 1982 simple assault charge. He claims that he did not knowingly and intentionally give a false or incomplete response. Respondent testified that he would have disclosed his guilty plea if he had remembered it. Taking into account all evidence, Respondent's testimony is not persuasive. Petitioner's investigator subsequently questioned Respondent about the 1982 offense. Respondent then contacted his attorney in New Hampshire. The attorney obtained a copy of the court docket which was subsequently furnished to Petitioner. During the hearing, Respondent testified that he still cannot remember whether the police fingerprinted him after his arrest. Respondent claims that he cannot remember the judge pronouncing a sentence or his attorney explaining anything about the proceeding to him. Likewise, this testimony is not credited.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's real estate broker's license and fining him $1000. DONE AND ENTERED this 6th day of November, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 6th day of November, 1998. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation 400 West Robinson Street, Suite N308 Orlando, Florida 32801 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 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
The Issue Whether Petitioner's application for certification as a certified nursing assistant (CNA) should be approved or denied.
Findings Of Fact On or about October 15, 2013, Ms. Warren submitted to Respondent an application for certification as a CNA. On or about August 15, 2014, Respondent informed Ms. Warren that her Application was being denied for two reasons. The first reason offered for denial is that Ms. Warren violated sections 464.018(1)(a) and 456.072(1)(h), Florida Statutes (2014),1/ by checking the "no" box, instead of the "yes" box, when asked about her criminal history on the Application. The second reason offered for denial is that Ms. Warren is not eligible for licensure because she did not pass the criminal background screening required by section 400.215, Florida Statutes.2/ Criminal Background Screening On March 5, 2012, Ms. Warren entered a plea of nolo contendere to a single count of "resisting an officer with violence" in violation of section 843.01, Florida Statutes. The offense occurred during calendar year 2010. Section 843.01 provides, in part, that any person found to be in violation of this section "is guilty of a felony of the third degree." According to the Order of Probation for this charge, the court withheld adjudication, and Ms. Warren was placed on probation for a period of 30 days. On April 4, 2012, the Florida Department of Corrections sent Ms. Warren a notice of "Termination of Supervision" and noted therein that "[y]ou are hereby notified that you completed your term(s) of supervision on 4/4/12 . . . and are no longer under the supervision of the Department of Corrections." Section 464.203 provides, in part, that "[t]he board shall issue a certificate to practice as a CNA to any person who demonstrates a minimum competency to read and write and successfully passes the required background screening pursuant to s. 400.215." Section 400.215 provides, in part, that "[t]he agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e)," Florida Statutes. Section 408.809(1)(e) provides, in part, that individuals, like Ms. Warren, shall be subject to a level 2 background screening pursuant to chapter 435. Section 435.04(2), Florida Statutes, provides, in part, that "security background investigations under this section must ensure that no persons subject to the provisions of this section have . . . entered a plea of nolo contendere" to "[s]ection 843.01, relating to resisting arrest with violence." The preponderance of the evidence establishes that Ms. Warren failed her background screening test as a result of her plea of nolo contendere to the offense of resisting arrest with violence. Alleged Application Misrepresentation The Notice of Intent to Deny provides, in part, as follows: This matter came before the Board of Nursing at a duly-noticed public meeting on August 8, 2014, in Orlando, Florida. The applicant has applied for certification as a certified nursing assistant by examination. The applicant entered a plea of nolo contendere to a charge of resisting an officer with violence in 2012. The application includes the following question: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere or no contest to, a crime in any jurisdiction other than a minor traffic offense? You must include all misdemeanors and felonies, even if adjudication was withheld. The applicant answered the question NO. It is undisputed that Ms. Warren checked the "no" box in response to the question. It is also undisputed that Ms. Warren should have checked the "yes" box in response to the question given that on March 5, 2012, she entered a plea of nolo contendere to the felony charge of resisting an officer with violence. By correspondence dated August 15, 2014, the Board informed Ms. Warren that it was the Board's intent to deny her Application because she did not truthfully answer the question about her criminal background. In response to the Notice of Intent to Deny, Ms. Warren, by correspondence dated August 21, 2014, informed Respondent of the following: To the State of Florida Board of Nursing, I Ashley Warren made a mistake and checked off the wrong box. I was reading so fast and I was not aware of what I checked off in the box. I had checked off the wrong question. If possible, can I do another application because I would love to become a CNA, and I really hate I made [a] mistake in checking the wrong box. One of the sections of the Application submitted by Ms. Warren is titled, "Initial Licensure - Individual." This section asks multiple questions with subparts. Question 1 of this section directs that if the applicant "responded 'no,' skip to #2." Even though Ms. Warren answered "no" to the question, she, nevertheless, proceeded to answer questions 1.a., 1.b., 1.c., and 1.d. Question 3 of this section directs that if the applicant responds "[n]o, do not answer 3.a." Even though Ms. Warren answered "no" to question 3, she, nevertheless, proceeded to answer question 3.a. The same pattern was repeated with respect to question 4 wherein Ms. Warren answered "no" and then disregarded the directive not to answer questions 4.a. and 4.b. The multiple errors made by Ms. Warren when completing the Application support her contention that she was rushing while completing the Application. During the formal hearing, Ms. Warren testified as follows: Q: Okay. Now, you were arrested again in 2010? A: Yes. * * * Q: And you were charged with resisting an officer with violence? A: Yes. * * * Q: Did they put you in jail? A: Yes. Q: And you went to court on that charge? A: Yes. Q: Okay. I'm looking at page 20 of the exhibit, your Honor. You had an order withholding adjudication; is that correct? A: Yes. Q: And you pled nolo contendere or no contest to that charge? A: Yes. Q: Were you put on probation? A: I was put on PYT. Q: All right. What is PYT? A: It's something like a probation that you complete and it will be off your record. * * * Q: Okay. Now, on the application the question concerning criminal history says "have you ever been convicted of or entered a plea of guilty, nolo contendere or no contest to a crime in any jurisdiction other than a minor traffic offense." What about that don't you understand? A: I really don't understand none of it. * * * Q: Yes. You testified earlier that in your 2010 charge you pled nolo contendere or no contest to resisting an officer with violence. You said that was correct. Is that correct? A: Yes. Q: So did you understand what a nolo contendere plea was in 2010? A: No. Q: Did your lawyer advise you to plead nolo contendere? A: Yes. Q: Did your lawyer explain to you what that kind of plea meant? A: No. Q: Did the judge explain to you what that kind of plea meant? A: Yes. Q: Once it was explained to you, you decided to plea nolo contendere? A: I didn't understand the question when I was reading over it. Formal hearing Transcript, pp. 17–21. Additionally, Ms. Warren also testified as follows: Q: In responding to the criminal history question, if you didn't understand it, why didn't you just leave it blank? A: Because I didn't know if I would have sent it off and leave it blank if I would have got my license, but, at the same time, when I had went through the probation office and everything, they told me that everything was going to be off my record, that I completed all my terms and everything because it was my first time on having adult charge. So I really didn't understand none of that. So I'm going by their word. So I'm thinking if I don't have it on my record, I completed it, I can put "no" on the answer. It's not on my record. Formal hearing Transcript, pp. 24-25. Ms. Warren's testimony that she believed it was proper to answer "no" to the criminal background question on the Application is credible. The fact that Ms. Warren made multiple mistakes on her Application, coupled with her genuine belief that the charge of resisting an officer with violence was no longer on her record, indicates that Ms. Warren acted honestly and did not intend to misrepresent her criminal history when completing her Application.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Board of Nursing, enter a final order denying Petitioner, Ashley Q. Warren's, Application for certification as a CNA due to her failure to pass the level 2 background screening. DONE AND ENTERED this 17th day of February, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 2015.
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
The Issue The issue is whether Respondent provided the Florida Real Estate Commission with false information in his application to take the broker's examination, in violation of Sections 475.25(1)(b)and (l), Florida Statutes, or whether he is guilty of misrepresentation, false promises, or dishonest dealing by trick, scheme or device in any business transaction, in violation of Section 457.25(1)(b), and, if so, what penalty should be imposed.
Findings Of Fact Respondent became a licensed real estate salesperson on September 27, 1993. On this date, he placed his license with Brokers Realty of Naples, Inc. Respondent has not pursued the real estate profession as his primary business. He has not bought or sold any real estate under his license and has not put any time into it. Respondent's profession is the ministry. He as been a minister for 20 years and has been the senior pastor of Gulf Shore Community Church for five years. Respondent is a member of the Christian Missionary Alliance. In June 1993, Respondent was assigned the responsibility of forming a church in Naples. Respondent's wife was more interested than Respondent in pursuing a real estate career, and Respondent took the course with her more for moral support. While in class, they met a broker with whom they agreed they would place their salesperson's licenses. After receiving their salesperson's licenses, Respondent and his wife placed their licenses under the broker, as they had agreed. However, the broker closed her office after a couple of months. In the meantime, Respondent's wife had met David Bayer of Century 21 Old Naples Realty, Inc. (Century 21). In November 1993, she decided to place her license with Century Respondent agreed that he would do the same. Busy with starting a church, Respondent did not attend to the details of transferring his license. He believed that someone else was doing this for him, but no one did. Respondent's inattention allowed his licensing status to lapse. Unknown to Respondent at the time, his salesperson's license became invalid on November 16, 1993, for lack of an employing broker, according to Petitioner's records. Respondent's license remained invalid until March 31, 1995, when it became inactive, according to Petitioner's records. Respondent's wife later decided to pursue her broker's license. Again for moral support and to help her with preparing for the examination, Respondent agreed that he would also apply for his broker's license. In attempting to obtain the necessary paperwork to take the broker's examination, Respondent discovered in late August 1995 that Petitioner's records had not been updated to reflect the transfer of his license to Century 21. It appears that Respondent was not yet aware of the other above-described impediments to licensure. Trying to update Petitioner's records, Respondent submitted the two forms that are the subject of the present disciplinary proceeding. The first form was a Request for License or Change of Status, which Respondent faxed to Petitioner. Respondent completed the top section of this form, which is to be completed by the licensee. He signed it beside a typed-in date of December 30, 1993, which was the effective date of the transfer of his license to Century 21. Petitioner has not objected to anything in this section. The next section is to be completed by the broker/employer or nonlicensed owner/employer. At the bottom of this section are the words, "Broker or Non-Licensed Owner Sign Here:". Respondent hand-wrote Mr. Bayer's name in what he described as printing, but, on a blurry fax, could be mistaken for a signature for someone unfamiliar with Mr. Bayer's signature. Beside Mr. Bayer's name "December 30, 1993" was typed in. Petitioner has objected to Respondent's undisclosed signing of Mr. Bayer's name on this form. On September 11, 1995, Petitioner received another Request for License or Change of Status form. The bottom section of this form was signed by Mr. Bayer at the bottom in script considerably different from that of the earlier form. The top section of this form is filled out exactly as the earlier form, with Respondent's signature beside the typed-in date of "December 30, 1993." Petitioner objected to the typed-in date because it was nearly two years prior to the date that the form was filed. As to the second objection, there is nothing in the record to suggest that Respondent was trying to file paperwork with Petitioner in 1995 that was misdated so as to suggest that it was filed two years earlier. The 1993 date was the effective date of the license transfer. The form does not state "Date Signed"--only "Date." There is no place on the form to show an earlier effective date. Not only was Respondent not trying to mislead Petitioner with the date on the form, but it is almost impossible to find that the date was misleading. There is no way to conceal that the forms were filed in September 1995, not December 1993. Respondent even sent the second form certified, return receipt requested, so as to document further that the form was sent in 1995. In the absence of another place on the form to show the effective date of the transfer, Respondent's use of the date line to show the effective date was reasonable and not misleading. Thus, Respondent did not intend to mislead with this date entry, and no one could reasonably have claimed to have been misled by this date entry. Interestingly, Petitioner did not claim that Respondent's first form, which had a similar date entry, was misleading as to the date. As to the first form, Petitioner's objection is more substantial: Respondent signed Mr. Bayer's name without disclosing that he was doing so. Mr. Bayer testified that he would have signed the form in December 1993 or September 1995 because Respondent in fact had transferred his license to Century 21 in December 1993. The record does not establish that Mr. Bayer authorized Respondent to sign the form before he did so, but the record clearly established that he ratified the signature. A few days after the first form was faxed, Mr. Bayer signed a form and sent it to Petitioner. Clearly, Respondent's handling of the signature of Mr. Bayer does not rise to misrepresentation, false promises, or dishonest dealing by trick, scheme, or device. There was not fraudulent intent. The question is closer as to whether Respondent's handling of the signature rises to the level of making or filing a false report or record which the licensee knows to be false. Given the standard of evidence imposed upon Petitioner, there is considerable doubt whether the factual basis supporting a finding that Respondent signed as the agent of Mr. Bayer, who immediately ratified the act to eliminate any doubt as to its authorization, is sufficient to find that Petitioner has proved by clear and convincing evidence that Respondent knowingly made or filed a false report or record. However, the parties stipulated to a violation of at least one count, and the administrative law judge accepted the stipulation.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order either dismissing the Administrative Complaint or finding Respondent guilty of knowingly making or filing a false record or report and issuing a notice of noncompliance. DONE AND ENTERED this 27th day of October, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1998. COPIES FURNISHED: Steven D. Fieldman, Chief Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jeanette Martinez Porter, Wright, Morris & Arthur 4501 Tamiami Trail North, Suite 400 Naples, Florida 34103 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue The issue is whether Respondent failed to maintain good moral character as a law enforcement officer and violated provisions of Sections 943.1395(6), 943.1395(7), and 943.13(7), Florida Statutes (2003), and if so, what penalty should be imposed.
Findings Of Fact By stipulation of the parties, Respondent was, at all times material to this proceeding, a certified law enforcement officer in the State of Florida, holding certificate number 194615. On May 27, 2003, Dorothy Shelton was a dispatch duty officer at the Havana Police Department in Havana, Florida. The police chief asked Shelton to sit near Respondent in a small room at the police station when he came in to peruse the contents of his personnel file. Respondent arrived, took the folder and sat down near Shelton. When Respondent asked if he could remove papers from the folder, Shelton told him that it was not permitted. Some of the papers in the folder were loose and Respondent asked if he could have copies made of some of the documents. Shelton told him that copies could be made upon Respondent's going nearby to the Havana City Hall, paying the requisite copying fees, obtaining a receipt for same, and returning to the police station. Eventually, Respondent, after more paper shuffling, returned the folder to Shelton and left the police station. As he went out the door, Shelton observed a piece of paper in Respondent’s pocket. Shelton made the deduction that the paper came from the personnel folder and quickly told the duty sergeant that Respondent had removed a piece of paper from the folder. The sergeant immediately looked in the folder, noticed that a returned personal reference questionnaire sent out by the department in the folder was missing. The sergeant immediately proceeded to follow Respondent with the intent of stopping him outside, but discovered that Respondent had left the area. The sergeant then telephoned Respondent’s residence and left a telephonic message for Respondent to return the call. At about 5:00 p.m., that same day, Respondent returned the call. When questioned by the sergeant, Respondent admitted taking the document and later destroying it. At the hearing, Respondent testified that he was motivated to remove the document from the folder because he had a pending job application with the Florida Highway Patrol and the document inappropriately stated he had been “Baker-Acted.” In the course of his testimony, Respondent exhibited remorse and confirmed again a written apology he had written to the Havana police chief. At the hearing, Respondent also defended his actions by relating that he had discussed the matter with the Havana city manager who allegedly told him to go remove the document from the folder. In the absence of testimony by the city manager, Respondent’s testimony in this regard is not credited. The record does not reveal how long Respondent has been a certified law enforcement officer. There is no evidence that Respondent has a prior disciplinary history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order placing Respondent's certification as a law enforcement officer on probation for a period of two years upon such reasonable terms and conditions as may be determined by the Criminal Justice Standards and Training Commission. DONE AND ENTERED this 13th day of May, 2004, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2004. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Thompkins W. White, Esquire Igler & Dougherty, P.A. 1501 East Park Avenue Tallahassee, Florida 32301 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact James W. Collins was first licensed in Florida as a real estate salesman in 1978 and has been continuously so licensed since that time. At all times relevant hereto, he was licensed as a real estate salesman. On January 14, 1983, Respondent pleaded nolo contendere to three counts of grand theft, adjudication of guilt was withheld and he was placed on probation for five years. Conditions of probation included residing in the Department of Corrections for 300 days and making restitution. On January 14, 1983, Respondent Pleaded nolo contendere: to uttering a forged instrument (using a stolen credit card), adjudication of guilt was withheld and he was placed on five years probation to run concurrently with the probation noted in Finding 2. On January 14, 1983, Respondent pleaded nolo contendere to five counts of forgery, involving the same stolen credit cards in 3 above, adjudication of guilt was withheld and he was sentenced to the same five years probation and conditions of probation as in 2 and 3 above. In an application for licensure as a real estate broker sworn to on June 20, 1984, Respondent answered question 8, which asks if applicant has ever been arrested or charged with the commission of an offense, "No." In the addendum to this application which also contains the signature of Respondent, he answered the rephrased question 8, "No."
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact At all times material hereto, Respondent has been a real estate salesperson in the State of Florida, having been issued license number 0611282. At all times material hereto, Respondent was employed by Steven J. David at Century 21 Tri City Realty, Inc., in Fort Lauderdale as a licensed real estate salesperson. Her duties were selling and leasing real estate and managing properties owned by her employer. She was paid a commission on transactions she handled. In November 1996, Mike Nickas began receiving late notices from various mortgage companies which held mortgages on properties owned by him and David. He and David began investigating how that could be. They discovered that Respondent had written seventeen checks totaling in excess of $8,000 during 1996 from the business accounts payable to "cash" or to herself and had forged Nickas' signature to those checks. Those payable to "cash" were endorsed and cashed by her. Respondent was not a signatory on those accounts. In order to hide her theft, Respondent wrote in the checkbook that each check was "void" or wrote false entries as to the amount of the check and the payee. Further, when the bank statements arrived at the business each month, Respondent removed the unauthorized checks from the envelope. Respondent was not authorized to sign Nickas' name to any of those checks. Further, Respondent was not authorized to write those checks payable to herself or to write them payable to "cash" and then cash them herself. When David and Nickas confronted Respondent with their discovery, she admitted that she had written the checks without authorization. Respondent's employment was terminated.
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 allegations in the Administrative Complaint filed against her and revoking her license as a real estate salesperson. DONE AND ENTERED this 13th day of October, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1998. COPIES FURNISHED: Steven W. Johnson, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street, No. N 308 Orlando, Florida 32801 Stephen Post, Esquire 600 South Andrews Avenue Fort Lauderdale, Florida 33301 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32802
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
