The Issue An Administrative Complaint dated May 20, 1998, alleges that Respondent James Collins, violated Section 475.25(1)(m), Florida Statutes, when he falsely stated on an application for licensure that he had never pled guilty to, nor was convicted of a crime. The issue for disposition is whether that violation (obtaining a license by means of fraud, misrepresentation, or concealment) occurred, and if so, what discipline is appropriate.
Findings Of Fact James Collins has been an active real estate salesperson in Florida since July 28, 1994, having been issued license No. 0614229. On his application for licensure dated January 22, 1994, Mr. Collins answered "no" to this question no. 9: 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. In addition, he executed this affidavit statement on the application form: . . . 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 or its representatives, by him/her in response to inquiries concerning his/her qualifications. The response by Mr. Collins to question no. 9 failed to disclose that on September 18, 1978, he pled guilty to possession of not more than 5 grams of cannabis, a misdemeanor. His plea was in writing and he did not attend court. On September 21, 1978, he was adjudged guilty and sentenced to pay a fine of $495, plus costs totaling $37.75. His attorney paid the fine. The plea was the outcome of Mr. Collins' arrest for possession of controlled substance, Section 893.13, Florida Statutes, on April 21, 1978, at the Orlando International Airport. He was 28 years old at the time of arrest and 29 years old upon sentencing. At hearing, Mr. Collins' explanation of his arrest was that he and some friends were at the airport getting ready to fly to Ft. Lauderdale. The security check lady found a "little bit of marijuana," "less than a tenth of a gram of marijuana," in his carry-on bag. He was arrested and put in a holding room at the airport and did not make the flight to Ft. Lauderdale. He also explained that he was on crutches after having broken his hip playing racquetball and was taking pain medication. Mr. Collins further explained that he contacted an attorney, James Russ, a friend of the family, who wanted $10,000 to "make it go away." Mr. Collins did not have that money so he contacted another attorney, Richard Rhodes, who advised him to plead guilty. According to Mr. Collins, he remembered none of this incident until confronted by the Division of Real Estate. Then, in 1997, at the invitation of a Division staff person, Ms. Atkinson, Mr. Collins wrote a letter explaining the circumstances. His letter, dated December 16, 1997, tells a somewhat different story from that given at the hearing: . . . I was charged with possession of 1/10 of a gram of cannabis that was on the ground beside me and about 1000 other people, O.I.A. [illegible]. My attorney, James M. Russ told me just to plead guilty to possession of less than 5 grams of cannabis. It would be a lot cheaper than going to court. He told me to just forget about this and go on with your life and that is exactly what I have done. I paid a fine-no probation. I never even went to court. The only person I saw was James Russ and that is exactly what I've done until your letter came. (Petitioner's Exhibit No. 4.) . . . Except for the amount of marijuana, the police report was more consistent with Mr. Collins' letter than with his account at the hearing. That is, according to the apprehending officer, Mr. Collins fled a search of his shoe, ran to the airport main entrance and starting shaking a bag of marijuana on the sidewalk, where he was apprehended. A letter from attorney Richard Rhodes and the written plea document confirm that it was Mr. Rhodes, not James Russ, who represented Mr. Collins in the airport matter. Mr. Collins averred that he simply forgot the arrest and plea when he filled out his licensure application. In explaining the oversight he also added that he felt comfortable with his "no" answer because he had passed the FBI fingerprint check. Mr. Collins' explanations of the circumstances of his arrest and subsequent guilty plea are inconsistent and evasive. His lack of candor in these matters contributes to the non- credibility of his excuse that he simply forgot the incident altogether when he was filling out his licensure application. In recent years Mr. Collins has been active in his church and his daughter's school. She is 16 years old and he is her sole support, as her mother, his wife, died 7 years ago. In the 4 1/2 years that he has been licensed there have been no other complaints related to Mr. Collins' practice of real estate.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that the Florida Real Estate Commission enter its Final Order finding that Respondent violated Section 475.25(1)(m), Florida Statutes, and revoking his real estate license. DONE AND ENTERED this 30th day of December, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Frederick Wilsen, Jr., Esquire Gillis and Wilsen 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Center Tallahassee, Florida 32399
Findings Of Fact According to petitioner's uncontroverted testimony, he signed the notarized application for licensure as a real estate salesman, dated March 30, 1983, and gave the otherwise blank form, along with a separate piece of paper on which he had written answers to questions appearing on the form, to an employee of a real estate school he attended. The form was to be completed and mailed without his seeing it again; this was customary, he explained. On the separate piece of paper, he wrote answers to every question but number six, which asks: 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 violations), without regard to whether convicted, sentenced, pardoned, or paroled? Respondent's Exhibit No. 10. An anonymous typist supplied the word "no," and typed "NA" in the blank following the instructions, "If yes, state details including the outcome in full." Respondent's Exhibit No. 10. In fact, petitioner was arrested on January 29, 1971, and subsequently convicted for failure to appear in court on traffic charges in Pensacola. On October 28, 1976, petitioner was arrested on bad check charges. He pleaded guilty and was convicted on two counts on November 12, 1976. Respondent's Exhibit No. 1. On January 10, 1977, petitioner was convicted of seven additional counts of "worthless checks." Respondent's Exhibit No. 2. Later the same month, also in Pensacola, he was adjudicated guilty of another such offense. Respondent's Exhibit No. 3. Petitioner's next brush with the law was his apprehension and, in Pensacola, on May 11, 1978, conviction for indecent exposure. Respondent's Exhibit No. 4. On October 10, 1978, petitioner failed to appear for a trial scheduled on still another bad check charge. As a result, he was adjudicated guilty of contempt of the County Court of Escambia County. Respondent's Exhibit No. 5. At the hearing in the present proceedings, he first testified that he had not been adjudicated guilty of this charge, then said that this conviction was reversed on appeal. In giving this second version of events, petitioner recounted a highly improbable appellate hearing. He described in detail being present at oral argument on the appeal before a panel of three circuit judges, whom he named, and reported that his lawyer argued for reversal against the county judge who appeared in person to argue for affirmance of the contempt conviction. On April 9, 1979, petitioner was convicted of five counts of making and utilizing forged instruments. Respondent's Exhibit No. 7. These instruments purported to be checks drawn on his grandmother's account. Probation imposed on account of earlier charges was revoked at the same time. In addition, he was adjudicated guilty of writing numerous bad checks. Respondent's Exhibit 9. On this as on other occasions, he spent time in jail. He never spent more than four months in jail at one stretch, however. He was convicted in Pensacola on May 20, 1981, of writing two more checks against insufficient funds, each for $500. Petitioner claimed to be current on his child support payments and testified that he thinks he is honest and honorable. Before counsel for respondent produced the court records at hearing, petitioner, while under oath, misrepresented his criminal record in various respects. Petitioner's civil rights, except for the right to bear arms, were restored administratively on September 23, 1982. The second time he applied for licensure as a real estate salesman, petitioner answered question six more candidly. Both parties made posthearing submissions. Proposed findings of fact have been considered and adopted, in substance, for the most part. Proposed fact findings have been rejected where unsupported by the evidence, immaterial, subordinate or cumulative.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure as a real estate salesman. DONE and ENTERED this 8th day of December, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 8th day of December, 1983. COPIES FURNISHED: Lawrence S. Gendzier, Esquire Assistant Attorney General Room 212, 400 West Robinson Street Orlando, Florida 32801 Douglas Michael Burleson Post Office Box 18045 Pensacola, Florida 32523 Randy Schwartz Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Harold Huff, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802
The Issue The issue in this case is whether the Petitioner should be licensed as a real estate salesman by the Respondent.
Findings Of Fact On or about July 11, 1989, Vannessa Michelle Hall filed an application with the Department of Professional Regulation, Division of Real Estate, for licensure as a real estate salesman. Question #6 of the application states, "[h]ave 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?" Ms. Hall responded in the affirmative. Question #6 further provides, "[i]f you answered "YES," please state the details including dates and outcome in full." In response, Ms. Hall wrote that she had been receiving public assistance funds (AFDC), that she had exceeded the maximum income permissible for receipt of such funds, and had been "judged accordingly." In relevant part, question #7(a) of the application states, "[h]as any judgement or decree of a court been entered against you. in which you were charged. . .with any fraudulent or dishonest dealing?" Ms. Hall responded in the affirmative. The question provides that, if the answer is affirmative, the applicant should "attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held...." Ms. Hall did not attach the additional information sheet. On July 24, 1989, the Respondent requested further information regarding Ms. Hall's response to application question #6. In response, Ms. Hall replied that she had been found guilty of "AFDC fraud", had been sentenced to six months at the Jacksonville women's correctional facility, and had been required to make restitution in the amount of $1837. The evidence establishes that the fraud conviction occurred in 1985. In addition to restitution and incarceration, Ms. Hall was also placed on probation for a 30 month period. She has not completed making payments on the required restitution. Upon investigation, the Respondent learned that Ms. Hall had failed to disclose several other criminal convictions. The Respondent, citing the additional information, denied Ms. Hall's application for licensure based upon her responses to questions 6 and 7. In 1982, Ms. Hall was convicted of issuing and insufficient funds check and was required to make restitution in the amount of $25. Ms. Hall failed to disclose the information on her application. In 1983, Ms. Hall was found in contempt of court and was sentenced to 60 days incarceration, of which five days were served. Ms. Hall failed to disclose the information on her application. In 1986, Ms. Hall was convicted of petit theft, violating probation from fraud conviction. Ms. Hall was sentenced to six months incarceration. Ms. Hall failed to disclose the information on her application. On February 4, 1989, Ms. Hall was arrested for gambling. Ms. Hall explained that she was in a pool hall where other persons were playing cards and gambling, but was not herself playing. Law enforcement officers entered the hall in pursuit of other persons. Upon their entry, the card players left the table. The police noted the gambling table, and attempted to identify the persons who had been playing. When none of the persons in attendance would identify the players, the police arrested all persons present. Like the others present, Ms. Hall was arrested because she would not identify the card players for the police. She remained jailed for one day. Although the evidence as to whether Ms. Hall was convicted of the charge is unclear, at the hearing her attorney stated his belief that she not contested the charge and had been convicted. Ms. Hall failed to disclose the information on her application. Although Ms. Hall attributed her failure to disclose the gambling conviction to memory lapse, she offered no explanation for the failure to disclose the other convictions.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order denying the Petitioner's application for licensure as a real estate salesmen. DONE and RECOMMENDED this 11th day of September, 1990, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1990. APPENDIX CASE NO. 90-0314 The Petitioner did not submit a proposed recommended order. The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 3. Rejected, not supported by the evidence. The cited testimony does not establish that Ms. Hall received a 30 day sentence running concurrently with the six month sentence. 6-7. Rejected, immaterial. COPIES FURNISHED: H. Randolph Fall in, Esq. 437 East Monroe Street, Suite 2 Jacksonville, Florida 32202 Manuel E. Oliver, Esq. 400 West Robinson Street, Suite 212 Orlando, Florida 32801 Darlene Keller Division Director 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth E. Easley General Counsel 1940 North Monroe Street Tallahassee, Florida 32399-0792
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."
Findings Of Fact At all times pertinent to this hearing, Respondent, George Aliferis, was licensed as a real estate salesman in Florida under License No. 0325121. During all of April and May, 1980, Respondent was an associate in the real estate office of George D. Willmer. Mr. Willmer, a registered real estate broker, had managed property located at 713 East Court Street in Longwood, Florida, a 7-year-old home owned by William and Gloria Thomas, for several years while the Thomases were away, living in South Carolina. On April 3, 1980, Mr. and Mrs. Thomas entered an exclusive listing of their property for sale with Mr. Willmer. The asking price was $42,500, with $10,000 down, assumption of a first mortgage of $16,750, and the Thomases would hold a second mortgage of $15,750. Before executing the sales listing, the Thomases were advised by Mr. Willmer, their agent, that a sales price of $40,000 was fair, as other comparably sized houses in the area were selling for between $37,000 and $41,000. The price of $42,500 was to give the Thomases some bargaining room. On April 15, 1980, Respondent, who was then a salesman in Mr. Willmer's agency, submitted an offer to purchase the Thomases' property for $40,000, the exact price suggested by Mr. Willmer, his broker, to the Thomases, with $500 cash paid at time of offer, assumption of the first mortgage described above, a second mortgage of $13,250.10, and $9,500 cash at closing. The contract executed that date by Respondent listed him, his assigns or nominees as buyer, and called for a closing by June 30, 1980. This date was unilaterally changed to May 30, 1980, by the Respondent on April 16, 1980, the day after the offer was made. On April 16, 1980, the Thomases telegraphed their acceptance of Respondent's offer and terms with the exception that they stipulated closing would be held on or before May 15, 1980. The contract document signed by Respondent, bearing the May 30, 1980, closing date, was signed by the Thomases on April 20, 1980. On Sunday evening, April 27, 1980, Respondent telephoned Mr. and Mrs. Philip Fillman, then recent arrivals in the Orlando area, whom he had heard were looking for a house to buy. The Fillmans met the next day with Respondent, who took them to see the Thomas house. After checking it over, they decided to make an offer. Respondent had advised them during this period that comparable homes in the area were selling for $55,000 to $61,000 and that this house listed at $45,500 was a good investment. When the Fillmans asked if the owners would possibly take less, Respondent replied they would not, having already turned down a lesser offer. At no time did Respondent indicate he already had the house under contract for $40,000 or that he was representing himself. At no time was any offer for the property, other than that submitted by Respondent for $40,000 which was accepted by the Thomases, ever submitted to them by Respondent, Mr. Willmer, or anyone else. The Fillmans agreed to the $45,500 price and, on April 28, 1980, executed a contract to buy the property in question for that price, making a cash down payment at the time of execution of $6,000 payable to George Aliferis, the Respondent. Respondent deposited that check to his personal account at Park Federal Savings and Loan Association. It was not put into the real estate agency's escrow account. The name of the seller on the contract signed by the Fillmans was not the Thomases, but was instead George Aliferis, who indicated he had "control" of the property. He did not explain what that term meant. The contract executed by the Fillmans and by Respondent in his own name the same day, April 28, 1980, called for assumption of both mortgages and closing by June 1, 1980. Because the Fillmans were renting, they asked for, and received from Respondent, permission to move into the house prior to closing. They did so on May 11, 1980. Closings on both transactions were held at the law office of David Kerben in Orlando on May 14, 1980, in succession. At the first closing not personally attended by the Thomases, they conveyed the property to Respondent, who paid a net of $6,499.90 in cash which represented the net to close for the $40,000 purchase price, less $550 required to fix the air conditioner which had been complained of by the Fillmans. At that closing, Respondent also executed a second mortgage to the Thomases in the amount of $13,250 as a part of the purchase price. Within minutes of the Thomas-Aliferis closing referenced above, Respondent then conveyed the property to the Fillmans, who were present at the closing and who paid a net to close of $10,126.40 after a $6,000 down payment, and the two mortgages totaling $29,842.10. At the closing, the Fillmans signed a form relating to property insurance which also bore the notation that a payment of $159.05 was due to the Thomases (their address was also listed) on June 14. When the Thomases received that payment from the Fillmans, they called to find out why the Fillmans had sent the payment and in the course of this conversation, which took place on July 14, 1980, both parties first learned of the course of events which led up to the Fillmans' purchase. Up until that point, neither Mr. Willmer nor Respondent had made clear the nature of the transaction, except that on May 14, 1980, when the Fillmans arrived at lawyer Kerben's office for the closing, Respondent met them outside and said something about having just taken title to the property. Respondent contends that at the time he contracted with the Thomases to buy the property, he intended to live in it if his wife approved of it, or to lease it out on a long-term basis as an investment. However, Respondent had just recently moved into a newly built house and, in fact, put the property in question up for sale within two weeks of his contract. Respondent also indicated that he had been a real estate, agent only a few months, yet his application for licensure shows he was a licensed real estate agent in Maryland for approximately five years. In light of this evidence, I find the Respondent's credibility to be questionable and that he failed to fully disclose all required information regarding the transaction to his parties, the Thomases.
Recommendation In light of the above, it is, therefore, RECOMMENDED: That Respondent's license to practice real estate in Florida be suspended for one year and that an administrative fine of $1,000 be imposed upon him. RECOMMENDED this 8th day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1983. COPIES FURNISHED: Tina Hipple, Esquire Gary Printy, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801 Erik C. Larsen, Esquire 243 West Park Avenue Winter Park, Florida 32789 Mr. Harold Huff Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William M. Furlow, Esquire Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32801
Findings Of Fact Gerald B. Corlew is a registered real estate broker holding license number 0112972 and Corlew Realty, Inc., is a corporate broker holding license number 0157845. Mr. Robert M. Wright, Officer Manager for Corlew Realty, Inc., identified letterhead stationary of Corlew Realty, Inc., which he had designed and presented to Gerald B. Corlew before his approval prior to ordering the letterhead stationary for Corlew Realty, Inc. This stationary, copies of which were received as Exhibits 3 and 5, bears the word "Realtor" and the realtor logo, as approved by Mr. Corlew. Mr. Tiny Fullenkamp identified a business card prepared for him by Corlew Realty, Inc., bearing the name "Realtor" and the realtor logo. The testimony of the witnesses indicated that the stationary was ordered and these documents prepared and used during the first six months in 1977. The custodian of the records of the West Coast Board of Realtors for Citrus, Sumter and Levy counties shows that Gerald B. Corlew and Corlew Realty, Inc., were not members of the West Coast Board of Realtors in 1977. The custodian of the records further testified that membership in any other realty board would not entitle Corlew to use the name realtor or the realtor logo in association with his business in New Port Richey, Florida, which lies within the geographic boundaries of the West Coast Board of Realtors. Corlew received notice of the instant hearing as required by the statutes and rules.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the registration of Gerald B. Corlew as a registered real estate broker be suspended for a period of sixty (60) days. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of July 1978. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Joseph A. Doherty, Esquire Staff Counsel Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32801 Gerald G. Corlew Post Office Box 1086 Homossassa Springs, Florida 32647 Corlew Realty, Inc. 1314 U.S. Highway 19 South New Port Richey, Florida 33552
The Issue The issue is whether Respondent's license as a real estate salesperson should be disciplined for the reasons given in the Administrative Complaint filed on May 20, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this disciplinary action, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division), seeks to impose penal sanctions on the license of Respondent, Howard Sarven Williams, a licensed real estate salesperson, on the ground that he failed to disclose that he had pled guilty to a crime when he filed his application for licensure in September 1994. In his Election of Rights Form filed with the Division, Respondent disputed this allegation, contended that his incorrect response "was done with the mistaken belief that it could be answered that way," and requested a formal hearing. Respondent is subject to the regulatory jurisdiction of the Division, having been issued license no. SL 0617682 by the Division in late 1994. The license remained inactive from January 1, 1995, until February 8, 1995; on that date, Respondent became an active salesperson with J.A.S. Coastal Realty, Inc. in Destin, Florida, until June 20, 1998. Between then and December 1998, he had no employing broker. Whether he is currently employed as a realtor is not of record. It is undisputed that on November 9, 1994, Respondent pled no contest to 12 counts of keeping a gambling house, a felony of the third degree. The offenses related to the illicit placement by Respondent (and two other individuals now deceased) of video gambling machines in approximately 10 VFW clubs and American Legion posts in Northwest Florida. On November 10, 1994, the court withheld adjudication of guilt; it placed Respondent on 10 years' supervised probation; and it ordered him to pay a fine and investigative costs totaling in excess of $25,000.00. Respondent was arrested in late 1993. On September 23, 1994, or before he entered his plea of no contest, Respondent completed and filed with the Division an application for licensure as a real estate salesperson. Question 9 on the application asks in part 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? At the time the application was filled out, Respondent had not yet entered his plea of no contest. Therefore, he properly answered the foregoing question in the negative. Although Respondent was statutorily required to notify the Commission in writing of this matter within 30 days after entering his plea, he has not been charged with violating that statute. The record does not reveal how the Division learned that Respondent had pled no contest to the charges. In any event, in March 1998, or more than three years later, a Division investigator interviewed Respondent who readily admitted that he had pled no contest to the charges, that he was still on probation, and that he was making monthly payments on the substantial fine imposed in 1994. The issuance of the Administrative Complaint followed. Although the evidence does not support the charge, as narrowly drawn in the Administrative Complaint, it should be noted that Respondent says he mistakenly assumed (without the advice of counsel) that because he had pled no contest and adjudication of guilt was withheld, he had not been convicted of a crime. Thus, he believed that his record was clean. At the same time, the plea is a matter of public record, and Respondent did not intend to make a fraudulent statement in order to secure his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint, with prejudice. DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1999. COPIES FURNISHED: Herbert S. Fecker, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Laura McCarthy, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Drew S. Pinkerton, Esquire Post Office Box 2379 Fort Walton Beach, Florida 32549-2379 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not the Respondent, Frederick L. Lundeen, is guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence and breach of trust in a business transaction by misrepresenting that money he borrowed from a one Julie Couch would be used for the purchase of a lot but, instead, he utilized the money in connection with the purchase of a house for use by his family and for payment of other vacation and travel expenses and refuses to repay the loan, in a manner violative of Section 475.25(1)(b), Florida Statutes.3
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Frederick L. Lundeen, is a licensed real estate salesman and holds license number 0329068. On or about July 13, 1984, Respondent solicited and obtained $3,500 cash from Julie S. Couch (Couch) for the stated purpose of assisting Respondent in purchasing a lot on behalf of Keith and Beverly Rayburn, friends of the Couches. In connection therewith, Respondent executed and delivered to Couch a mortgage note dated July 13, 1984, to secure the $3,500 loan via certain real property owned by Respondent.4 Pursuant to the terms of the note executed by Respondent and given to Mrs. Couch, Respondent was to repay Couch the principal of $3,500 plus $1,000 interest due on or before July 27, 1984. On July 30, 1984, Respondent attempted to repay part of the loan via check dated July 30, 1984 drawn in the amount of $1,000. Respondent's check was returned unpaid by the Drawers Bank with the notification "insufficient funds." (Petitioner's Exhibits 3 and 4) Thereafter, Respondent advised Mrs. Couch that the money was used to pay for his moving, vacation and other relocation costs for his family. Keith Rayburn attempted to buy property from the Respondent which was owned by Southern Standards Corporation. At no time during the attempted purchase by Keith Rayburn did Respondent offer to loan him money to purchase a lot from Southern Standards Corporation. Respondent executed and drafted the terms of the note which was given to Julie Couch which memorialized the loan from Mrs. Couch to Respondent. In this regard, Respondent contends that Julie Couch's ex-husband suggested the terms and the rate of interest which he inserted into the note which memorialized the loan from Julie Couch. On the other hand, Julie Couch testified that it was Respondent who suggested the terms and the interest which he provided with the executed note given her. Based on all of the evidence introduced herein including the fact that Respondent misrepresented the purpose for which the money would be utilized, and his failure to call Gary Couch as a witness to substantiate his claim that it was he, Gary Couch, who suggested the terms under which the loan would be made, the testimony of Julie Couch in this regard is credited.5 Respondent has repaid approximately $1,250 of the $3,500 loan from Julie Couch. Respondent, based on advice of his counsel, refuses to repay any further amounts on this loan contending that the interest rates were usurious and, further, that the State, in the person of Petitioner, is attempting to use its "strongarm tactics" to exact money from Respondent which is a usurious transaction. Respondent also contends that because the interest rate charged by Mrs. Couch was in excess of 45 percent per annum, Mrs. Couch committed a third degree felony. As previously stated, the weight of the evidence reveals that it was Respondent who drafted the note and provided the terms for repayment. It is also clear that Respondent misrepresented to Mrs. Couch the purpose for which he would utilize the money that he borrowed from her. It is therefore concluded that by such acts Respondent engaged in acts of misrepresentation, false pretenses, trick and dishonest dealing in a business transaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED: That the license of Respondent, Frederick L. Lundeen, be suspended for a period of one (1) year and that he be fined $1,000. RECOMMENDED this 21st day of October, 1985, in Tallahassee, Florida.6 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 21st day of October 1985.
Findings Of Fact Petitioner, Marcus J. Brown f11ed an application for the issuance of a Class "C" license on Apr11 8, 1982 with Respondent, Department of State, Division of Licensing. That license authorizes a licensee to Perform private investigative work. After reviewing the application, Respondent denied the same on June 26, 1982 on the ground Petitioner did not possess the requisite experience required by Subsection 493.306(4), Florida Statutes, The denial Precipitated the instant proceeding. Petitioner is a licensed real estate salesman, He supports himself through his activities as a real estate salesman and "Personal business activities." Between 1979 and Apr11, 1982, Petitioner performed investigative work on three cases involving real estate transactions. The work wad performed on a Part-time basis on behalf of two attorneys and a real estate broker in the Miami area. One of the cases is st11l pending. The work involved, inter alia, interviewing witnesses, researching corporate records, and securing documents for use at trial. Petitioner had a personal interest in the outcome of all three cases, and at least one involved an effort by him to secure an unpaid real estate commission due him. He has received no compensation for his services as an investigator to date. Petitioner has no college course work related to private investigation nor has he worked as a licensed intern.
Recommendation Based on the foregoing findings of fact and conclusions of law, it RECOMMENDED that the application of Marcus J., Brown for licensure as a private investigator be DENIED. DONE and ENTERED this 6th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Bu11ding 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 F11ed with the Clerk of the Division of Administrative Hearings this 6th day of December,1982.
Findings Of Fact The Respondent, Charles L. White, is registered with the Real Estate Commission as a Real Estate Salesman. Copies of the Administrative Complaint filed by the Commission against the Respondent were forwarded to the Respondent at the address he most recently provided the Commission. Copies of the Complaint were returned to the Commission, and copies of the Notice of Hearing forwarded to the Respondent have likewise been returned. Efforts to locate the Respondent have been unsuccessful. A forty-count indictment was issued by the Grand Jury of the United States District Court in the Middle District of Florida, Tampa Division, against the Respondent, Charles L. White, and five other persons. On February 5, 1977, a jury found the Respondent guilty of all counts of the indictment in which he was charged. On June 3, 1977, he was adjudicated guilty, and sentenced to serve eighteen months in the Federal Penitentiary, execution of the sentence being suspended, and the Respondent being placed on probation for a period of two years. The crimes of which the Respondent was convicted involve dishonest dealing in connection with real estate transactions, and include fraud, fraudulent use of the mail, and conspiracy to commit violations of Federal law.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED: That a final order be entered finding the Respondent guilty of the charges alleged in the Administrative Complaint, and suspending the Respondent's registration as a real estate salesman for a period of two years. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of June 1978. G. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Kenneth M. Meer, Esquire Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Mr. Charles L. White D-30 Sierra Apartments Stuart, Florida 33494 Mr. Charles L. White c/o County Realty & Investments Stuart, Florida 33494
