The Issue Whether Respondent engaged in acts and/or conduct amounting to fraud, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in a business transaction for which his real estate license should be disciplined.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to, inter alia, Chapters 455 and 475, Florida Statutes and rules promulgated pursuant thereto. Respondent, John Wilson Claffey, is now and was at times material hereto, a licensed real estate salesperson in Florida, having been issued licensed number 0419730. The last license issued was as a salesperson, c/o Venice Properties and Investments, Inc., 628 Cypress Avenue, Venice, Florida. During 1985, Respondent and Mary Lou Retty (Retty), while Respondent was acting as the licensed general contractor in the employ of Venice Construction Management, Inc., entered into a verbal agreement to build five commercial structures (for Retty) in Venice, Florida. The agreement provided that Respondent would charge Retty actual costs plus a supervisory fee for each building. Respondent built the first two buildings as agreed in keeping with the projections he provided Retty. However, a dispute later arose between Respondent and Retty during construction of the third building about some of the billings and other accounting practices with the end result that Retty suspected that Respondent was overcharging by falsifying invoices and purchasing materials which were used for other projects, but were charged to the building he was erecting for Retty. During 1986, Retty filed a lawsuit in the Circuit Court of the Twelfth Judicial Circuit for Sarasota County, Florida. Retty's object was to recover monies that she suspected Respondent had misappropriated and wrongfully charged to her project. On April 25, 1990 and June 28, 1990, Retty obtained two final judgments. The first judgment ordered Respondent to pay Retty $40,263.47 and the second final judgment ordered him to pay her the sum of $10,263.47 for civil theft, attorney fees and court costs. The interest rate for both judgments was 12% per annum. (Petitioner's Exhibits 1-4.) During counsel's preparation and discovery for trial, it became evident that Respondent altered several billing invoices which he sought to collect from Retty. Respondent submitted falsified invoices and charged Retty for materials that he used on other projects. Respondent unsuccessfully appealed the final judgments. To date, Respondent has not paid any of the monies he was ordered to pay in the final judgments referenced herein.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a Final Order finding that Respondent engaged in proscribed conduct as alleged and that his real estate license be suspended for seven (7) years. It is further RECOMMENDED that Respondent Claffey pay an administrative fine of $1,000.00 to Petitioner within thirty (30) days of the entry of its Final Order. DONE and ORDERED this 29th day of January, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 29th day of January, 1993. COPIES FURNISHED: Steven W. Johnson, Esquire Senior Attorney DPR- Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 John Wilson Claffey 312 Venice Avenue East #126 Venice, Florida 34292 Darlene F. Keller/Executive Director Florida Real Estate Commission Hurston Building-North Tower 400 West Robinson Street Orlando, Florida 32801 1772 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner David F. Goodman was previously licensed as a real estate salesman in Florida from 1980 to 1986. On March 5, 1986, an Administrative Complaint was filed against him seeking disciplinary action on the grounds that he had been found guilty of a felony involving moral turpitude and had also failed to notify or inform the Florida Real Estate Commission of the guilty plea or of the conviction. In response to the Administrative Complaint, the petitioner voluntarily surrendered his license as a real estate salesman and entered a written agreement that his license would be revoked. In the "affidavit for the voluntary surrender of license for revocation," petitioner agreed that ". . . I will not apply for nor otherwise seek any real estate license or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation." By Final Order filed on May 29, 1986, the Florida Real Estate Commission revoked petitioner's license effective May 20, 1986. Petitioner filed his current application for licensure as a real estate salesman on or about September 17, 1987. In responding to question 6 of the application, which inquired if the applicant had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere, petitioner stated: "Arrested 10-12-84 Conspiracy to traffic cocaine-Sentenced Feb. 25, 1986 to 4 years Federal Court. Docket #84-205-CR-T-10. Sentence 2 yrs. suspended 5 yr. Probation (Case 84-09340-CF(ICT) VFCDAPCA-Voluntarly (sic) surrendered real estate license (Case No. 0151698) Dept. of Prof. Reg. -Final Order filed by FREC 5-29-86." Petitioner also disclosed that his former real estate license had been surrendered and revoked. The petitioner admits that he pleaded and was found guilty by the United States District Court for the Middle District of Florida of the felony offense of having knowingly and intentionally combined, conspired, confederated and agreed with various other persons to possess with intent to distribute a quantity of cocaine, a Schedule II, narcotic controlled substance. For this offense, petitioner was sentenced by the federal court to two years imprisonment, but the imposition of sentence was suspended and petitioner was placed on probation for a period of five years. The probationary period will terminate in April of 1990. The petitioner further testified that he was also found guilty and convicted in state court for the same crime. He was sentenced to four years in state prison, and served eighteen months of that sentence before being released. He has been out of the state prison for approximately nine months. Petitioner admits his guilt regarding the federal and state cocaine charges, states that he learned and was humbled by that experience and states that he now wishes to reenter the real estate profession which he loves in order to provide for his family. The petitioner did not present any other witnesses or documentary evidence.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of David F. Goodman for licensure as a real estate salesman in Florida be DENIED. Respectfully submitted and entered this 23rd day of May, 1988, 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 May, 1988. COPIES FURNISHED: Douglas F. Goodman 1100 Boca Ciega Isle St. Petersburg Beach, Florida 33706 Manuel E. Oliver, Esquire Assistant Attorney General Suite 212 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801
The Issue Whether Petitioner’s application for licensure as a real estate broker should be approved or denied.
Findings Of Fact Based on the testimony and documentary evidence presented in this proceeding, the following Findings of Fact are found: Respondent is the state agency charged with regulating the practice of real estate in the State of Florida, pursuant to section 20.165, chapters 455 and 475, Florida Statutes. Petitioner seeks to obtain a real estate broker license to practice real estate in Florida. Petitioner is a resident of the State of Utah and has held an active real estate broker license in Utah for at least 24 months during the preceding five years from the date of his application. In 2003, Petitioner was first licensed in Utah as a real estate sales agent. On February 12, 2007, Petitioner was issued a real estate broker license, and his limited-liability company, Ultimate Homes of Utah, LLC, was licensed as a real estate company in Utah. On July 28, 2016, Petitioner submitted an on-line application for a Florida real estate broker license. The application included a section which requested background information. Question No. 1, one of the four questions on the application, requested information about Petitioner’s criminal history. Specifically, Question No. 1 requested in pertinent part the following: “Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or are you currently under criminal investigation?” The application also directed applicants, who responded “yes” to Question No. 1, to provide details regarding any criminal offense, including description of the offense, offense type, penalty or disposition, and whether sanctions have been satisfied for each offense. In his application, Petitioner answered Question No. 1 affirmatively. He disclosed that he plead guilty to one count of aggravated sexual abuse of a child, a first-degree felony, on July 5, 1995. The criminal offense occurred in Utah. Further details of the criminal offense will be discussed below. Petitioner appeared, pro se, at the December 14, 2016, Commission meeting where his application was considered. On January 12, 2017, Respondent entered a NOID, which stated a number of grounds for the intent to deny Petitioner’s application. Respondent’s NOID recited key findings of fact 1 and 4, and key conclusions of law D, G, and M, as grounds for its proposed denial of Petitioner’s application. Those key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s NOID, are as follows: Crimes in Application. Applicant’s criminal record is as revealed in application. * * * 4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive. * * * D. Having been denied licensure or having a license to practice any regulated business, profession or vocation, for conduct which would constitute a violation of this Chapter. 475.1791)[sic], 475.181 F.S. * * * G. Convicted or found guilty or entered a plea of nolo contendere 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. 475.25(1)(f), 475.181 F.S. * * * 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 easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S. Regarding the circumstances of Petitioner’s criminal offense, on December 13, 1994, an Information was filed by the County Attorney for Circuit Court of Davis County, State of Utah, which charged Petitioner with three counts as follows: Count One: rape of a child, a first degree felony: On or about July 30, 1993, Petitioner engaged in sexual intercourse with a child under 14 years of age. Count Two: Sodomy Upon a Child, a first degree felony: On or about July 30, 1993, Petitioner engaged in a sexual act involving the genitals of the actor and the child under the age of 14 and the mouth or anus of either person. Count Three: Rape of a Child, a first degree felony: On or about August 13, 1993, Petitioner had sexual intercourse with a child who is under the age of 14. The victim involved in the criminal offense was a 13-year-old female, while Petitioner was 21 years old. Petitioner ultimately pled guilty to one count of aggravated sexual abuse of a child. On July 5, 1995, Petitioner was sentenced to an indeterminate term of three years to life, fined $2,000, and ordered to pay restitution for costs of the victim’s counseling. The court also recommended that Petitioner participate in a specialized sex offender treatment program. Petitioner served four years’ imprisonment, followed by five years of parole. Petitioner was released from prison in 1999. Following Petitioner’s release from prison, he was required to register as a sex offender and remained on the registry until October 10, 2015. At hearing, Petitioner expressed remorse for his actions, and acknowledged that the facts of the offense were accurately described in the filed Information. According to Petitioner, the events giving rise to the criminal offense began with his childhood. Petitioner described his childhood as one where he did not have a close relationship with his parents and did not receive affection from them. That lack of affection affected him to the extent that he was “love-starved.” Petitioner explained that “when he was 21 years old, a 13-year- old girl expressed interest in him and he made the mistake of pursing her as a love interest.” After his release from prison, Petitioner worked in the food service industry until he lost his job in 2002. Thereafter, he pursued a career working in real estate. During the time Petitioner has held a real estate license in Utah, he has earned various certifications related to real estate including, e-Pro Certification (2004), Distressed Property Expert (2011-2012), Short Sales and Foreclosure Resource Certification, and Residential Specialist Certification. Petitioner was given the opportunity to submit letters of recommendation to show evidence of his reputation, honesty, truthfulness, trustworthiness, and good character. Petitioner offered several letters from past customers and business partners to attest to his work ethic, responsibility, and trustworthiness in real estate dealings. Those letters are of limited value as it relates to moral turpitude and rehabilitation because the authors of the letters had no knowledge of Petitioner’s criminal history. Petitioner’s testimony regarding his otherwise blemish-free criminal history since the incident, employment history, and achievements since the criminal offense is found to be credible. Petitioner acknowledged in his testimony at the final hearing that what he did in 1993 was wrong. He has not attempted to hide the incident from Respondent as he disclosed the details of the incident on his application. It is undisputed that he completed a sex offender treatment program, completed his probation, and was released from the requirement to register on the Utah sex offender registry in 2015. Furthermore, there is no evidence that Petitioner has been involved in any criminal activity since the criminal offense in 1993, nearly 25 years ago. In his testimony, Petitioner also highlighted his qualifications as a broker, which were corroborated by the letters of support from Petitioner’s former clients that were offered at the hearing. Petitioner is a father of three children, has been married for more than 20 years, has been a licensed real estate broker in the state of Utah for 14 years, and has not exhibited a pattern or practice of violations before or after the incident in 1993. Rather, the incident in 1993 stands alone as the only blemish on Petitioner’s record. No evidence was presented at hearing of any prior discipline against Respondent’s license in any jurisdiction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Real Estate issue a final order approving Victor Rothaar’s application for licensure as a real estate broker. DONE AND ENTERED this 26th day of July, 2017, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 26th day of July, 2017.
Findings Of Fact Respondent, Hillard J. Meinstein, is the holder of real estate salesman license number 0174789 issued by petitioner, Department of Professional Regulation, Florida Real Estate Commission. The license was issued on September 1, 1981 and remains current as of this date. On or about March 16, 1982 the circuit court for Hillsborough County, Florida entered an order accepting a plea of nolo contendere from one Hillard J. Meinstein for the offense of conspiracy to traffic in cocaine. Adjudication of guilt was withheld and Meinstein was placed on probation for 15 years and required to pay a $10,000 fine to the Hillsborough Country Sheriff's Office within one year after date of sentence. A certified copy of the order has been received in evidence as petitioner's exhibit 3. It was not disclosed whether the respondent and the defendant in the above case were the same individuals. On April 30, 1982 the supervisor for application certification of the then Board of Real Estate wrote the sheriff of Hillsborough County and requested him to search his records to determine if a Hillard Jeffrey Meinstein had been arrested by his agency for various charges including conspiracy to traffic in cocaine. The letter also indicated that Hillard Jeffrey Meinstein was an applicant for licensure as a real estate salesman. The response of the sheriff, if any, was not disclosed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ENTERED this 31st day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1984. COPIES FURNISHED: Gary Lee Printy, Esquire P. O. Box 1900 Orlando, Florida 32802 Richard J. R. Parkinson, Esquire 602 East Central Avenue Orlando, Florida 32801
Findings Of Fact The Respondent, Leonard M. Wojnar, is a licensed real estate salesman, having been issued license number 0372634. The Respondent was a licensed real estate broker in the State of Michigan from approximately 1975 until his license was revoked on or about July 2, 1982. In the fall of 1980, a Complaint was filed in Michigan against the Respondent. The Respondent appeared at a hearing in Michigan, after which this case was dismissed. On or about February 3, 1981, the Department of Licensing and Regulation in Michigan contacted the Respondent by letter, notifying him of the Department's involvement with the complaint against him. This letter was received by the Respondent. By letter dated February 9, 1981, to the Michigan Department of Licensing and Regulation, the Respondent replied to the February 3, 1981 letter. On or about May 12, 1981, the Michigan Department of Licensing and Regulation issued a formal Complaint against the Respondent, and served it on him on approximately May 13, 1981. There is no evidence to demonstrate that the Respondent received service of this Complaint, but based upon the earlier correspondence between the Michigan Department of Licensing and Regulation and the Respondent, the Respondent was on notice of a proceeding pending against him. On May 22, 1981, the Respondent completed his application for licensure in Florida. Thereafter, with the assistance of counsel in Michigan, the Respondent attended hearings and proceedings in the Michigan action against his real estate license. The Respondent's Michigan license was revoked on or about July 2, 1982. When the Respondent applied for his Florida license, he failed to disclose that a proceeding was pending against his license in Michigan, and he answered Question 15a on the Florida application in the negative. This question asks if any proceeding is pending in any state affecting any license to practice a regulated profession. The Respondent contends that the revocation of his license by the Michigan authorities is invalid, and that legal proceedings are pending in Michigan to obtain restoration of his license there. He also contends that he was not aware of any proceeding pending against him when he answered Question 15a on the Florida application.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0372642 held by Leonard M. Wojnar be REVOKED. THIS RECOMMENDED ORDER entered this the 21st day of July, 1983, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 July, 1983. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Steven Warm, Esquire 101 North Federal Highway Boca Raton, Florida 33432 William M. Furlow, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Orlando, Florida 32801 Harold Huff, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Fred Roche, Secretary Department of Professional Regulation Old Courthouse Square Bldg. 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony and exhibits in evidence, and the observed candor and demeanor of the witnesses, the following are found as facts: The Respondent John J. Piccione, is a licensed real estate broker, having been issued license No. DK006911. The Respondent John J. Piccione, Inc., is a corporate real estate broker, having been issued license No. CW0069127. The Respondent Theresa M. Harris, is a licensed real estate salesperson having been issued license No. FL0331486. At all times material to the issues in the Administrative Complaint, the Respondent Theresa M. Harris was a licensed salesperson with the Respondent John J. Piccione Real Estate, Inc., under the brokerage license of the Respondent John J. Piccione. Theresa M. Harris was the listing and selling salesperson in connection with a real estate transaction between Wilbur J. Hamilton, Jr., as seller, and Mr. and Mrs. James Smith, as buyers. This transaction was closed on December 16, 1980, in Ocala, Florida. The closing was held in the offices of American Mortgage Funding Corporation, and was conducted by Thomas G. Sawaya, Esquire, as Closing Attorney. Present at the closing were the seller, Mr. Hamilton, the buyers, Mr. and Mrs. Smith, the Respondent, Theresa M. Harris, and Charles DeMenzes, President of American Mortgage Funding Corporation. Prior to the time the Contract for Sale was executed by the seller and the buyers, the Respondent Harris was informed by a party named Mr. Alsobrook that he claimed an interest in the proceeds from the sale on the subject property. The seller acknowledged that Mr. Alsobrook was entitled to a share of the proceeds. After the contract was signed, but before closing, the Respondent Harris was contacted on two more occasions by Mr. Alsobrook concerning his interest in the proceeds of the sale. On December 15, 1980, before the closing occurred, a Civil Complaint was filed against the seller in the Circuit Court of Marion County by Mr. Alsobrook regarding Mr. Alsobrook's interest in the property and the proceeds. In connection with this lawsuit a Lis Pendens was delivered to the Office of the Clerk of the Circuit Court on December 15, 1980, but was not filed in the Official Records Book of Marion County until December 17, 1980, in O.R. Book 1046, page 116, after the Deed from Mr. Hamilton to Mr. and Mrs. Smith had been recorded in O.R. Book 1046, page 73. On December 15, 1980, the day before, the closing, Robert Duggan, who is Mr. Alsobrook's attorney had a telephone conversation with the Respondent Harris, in which he informed her that a lawsuit had been filed concerning Mr. Alsobrook's interest in the proceeds of the sale, and that a Lis Pendens had been or was going to be filed against the property. This attorney requested that the closing be delayed until the dispute concerning the property could be resolved. On December 16, 1980, before the closing, the Respondent Harris conveyed to the Respondent Piccione, her broker, the contents of her conversation with Mr. Alsobrook's attorney. The Respondent Harris was instructed by the Respondent Piccione to attend the closing and not to mention either the call from Attorney Duggan, or the pending lawsuit, or the Lis Pendens, unless someone else brought these matters up. At no time during the closing or prior to the closing did the Respondent Harris make known to the buyers, the lender, or the closing Attorney, the facts known to her regarding the call from Attorney Duggan, the pending lawsuit, or that a Lis Pendens had been or would be filed against the property. The Respondent Piccione was aware of the fact that a Lis Pendens had been or was going to be filed against the property, but he instructed his salesperson, Respondent Harris, to withhold this information from the parties to the sales transaction at the time of closing. The closing was completed and the lender, without knowledge of the pending suit and Lis Pendens, disbursed the net proceeds of $15,728.24 to Mr. Hamilton as the seller. The closing Attorney and the lender were informed of the Lis Pendens and the pending suit by the attorney for Mr. Alsobrook the day after the closing took place. Upon being informed of the pending lawsuit, the lender contacted the seller, who agreed to return the proceeds to the lender The lawsuit was subsequently dismissed and the Lis Pendens discharged upon distribution of the net sale proceeds to Mr. Alsobrook in the amount of $6,385.19 and to Mr. Hamilton in the amount of $9,393.05. The Respondents received a commission of $1,500 which was paid $900 to Mrs. Harris and $600 to Piccione Real Estate, Inc.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, Theresa M. Harris, be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that her license be suspended for one year. It is further RECOMMENDED that the Respondents, John J. Piccione and John J. Piccione Realty, Inc., be found guilty of violating Section 475.25(1)(b), Florida Statutes, and that their licenses be suspended for one year. THIS RECOMMENDED ORDER entered on this 27 day of September, 1982. WILLIAM B. THOMAS, 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 27 day of September, 1982.
The Issue At issue in this proceeding is whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the "Department"), is a state government licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Maureen Teresa Mobley, is a licensed real estate salesperson in the State of Florida, having been issued license number 0647773. On or about January 22, 1997, Respondent filed an application with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: 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. Respondent answered item 9 by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, 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 or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On March 3, 1997, Respondent passed the salesperson examination and was issued license number 0647773. From March 15, 1997, through April 7, 1997, Respondent was an inactive salesperson. From April 8, 1997, through the present, Respondent has been an active salesperson associated with Betty K. Woolridge, an individual broker trading as B. K. Woolridge and Associates, currently in Tampa, Florida. Steve Pence, Investigative Supervisor for the Department, investigated Respondent’s criminal history. He discovered that Respondent had "a problem" with a worthless check charge. Mr. Pence obtained a Certificate of Disposition from the Clerk of the Circuit Court for Hillsborough County, Florida. The Certificate indicated that on November 4, 1992, Respondent entered a plea of nolo contendere to a misdemeanor charge of obtaining property with a worthless check, an offense that occurred on July 25, 1991. The Certificate further indicates that adjudication was withheld. After Mr. Pence concluded his investigation, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid criminal disposition, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Florida Statutes" and sought to take disciplinary action against her license. According to the complaint, the disciplinary action sought . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. . . . At the hearing, Respondent testified that six or seven years ago, she wrote a check for $19.00 that was not cleared at her bank. She had moved during this period, and for some reason the notification did not reach her. When she found out the check had not been paid, she went directly to the intended payee and made the payment. A year later, she was stopped for a minor traffic violation and was arrested on an outstanding warrant for her arrest on the worthless check charge. At the time, she thought the matter had been taken care of and had no idea there was warrant out for her arrest. Respondent testified that she went before the judge, who noted that she had made good on the check more than a year before her arrest. Respondent admitted pleading no contest to the charge. However, Respondent’s understanding of "adjudication withheld" was that the judge had dismissed the charge, provided she pay the court costs. She never saw the Certificate of Disposition until Mr. Pence brought it to her attention several years later. Respondent's explanation for her failure to disclose the worthless check charge on her application is credited. It is found that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing her application. In so finding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter was reasonable, given the passage of time since the events in question, the minor nature of the underlying charge, and the fact that the judge acknowledged she had long since made good on the $19.00 check at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 March, 1999. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Leonard H. Johnson, Esquire Schrader, Johnson, Auvil and Brock, P.A. Post Office Box 2337 37837 Meridian Avenue Dade City, Florida 33526-2337 William Woodyard Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 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 32302-1900
The Issue The issues are whether Respondent is guilty of failing to account for and deliver a share of a real estate commission, as required by Section 475.25(1)(d)1., Florida Statutes, and, if, so, what penalty should be imposed.
Findings Of Fact At all material times, Petitioner has been a licensed real estate broker, holding license number 0314643. Petitioner does business under the name, Blue Ribbon Realty. Petitioner employs several real estate salesmen in her brokerage business. Virginia M. Poole is a licensed real estate salesman. During 1988, she was looking for a house to buy. At the time, she was working in a hotel as a cashier. While working at the hotel, Ms. Poole met Mary Asian, who was also working at the hotel. At the same time, Ms. Asian was and remains a real estate salesman working at Blue Ribbon Realty. In a period of several weeks, Ms. Asian showed Ms. Poole several houses and presented at least one offer with a small deposit. One day while driving on her own, Ms. Poole came across a house that appealed to her. At or prior to this time, Ms. Poole had placed her salesman's license with Blue Ribbon Realty. Ms. Poole negotiated a sales contract with the seller. The contract was signed by Ms. Poole and the seller on November 10, 1988. By a separate commission agreement signed the same date, the seller agreed to pay Respondent a commission equal to 3% of the sales price. The closing took place on December 14, 1988. The closing agent duly paid Respondent the sum of $2172, which represents 3% of the purchase price. Respondent cashed the check and received the proceeds thereof. Under the agreement between Ms. Poole and Respondent, Ms. Poole was to be paid one-half of all commissions that she earned for Blue Ribbon Realty. At the closing, Ms. Poole asked about her share of the commission. Refusing to pay anything to Ms. Poole, Respondent told her, "You get it any way you can." Respondent believed that Ms. Asian, not Ms. Poole, was due the salesman's share of the commission, which by agreement was one-half of the sum paid to Blue Ribbon Realty. Ms. Poole, who never listed or sold any properties for the two or three months that her license was placed with Respondent, had placed her license with another broker over ten days in advance of the December 14 closing. Under the agreement between Respondent and her salesmen, no commission was due any salesman who left Blue Ribbon Realty more than ten days prior to a closing. The reason for this policy was that much work had to be done in the ten days preceding a closing, and it was unfair to require others to perform the work while paying the salesman's share of the commission to a departed salesman. After repeated attempts to obtain payment of the $1086 due her, Ms. Poole filed a legal action against Respondent in Orange County Court. The defenses raised by Respondent apparently proved unavailing. On April 12, 1989, Ms. Poole received a final judgment in the total amount of $1197.44, including interest and costs. Although the filing date does not appear from the face of the exhibit, a Notice of Appeal was served on Ms. Poole on June 30, 1989. Subsequent attempts to recover on the judgment were unsuccessful. At this point, Ms. Poole filed a complaint with Petitioner. Respondent never requested the Florida Real Estate Commission to issue an escrow disbursement order determining who was entitled to the disputed half of the commission, never sought an adjudication of the dispute by court through interpleader or other procedure, and never submitted the matter to arbitration with the consent of the parties. The only thing that Respondent has done in this regard is to deposit the contested sum in the trust account of her attorney, apparently pending the resolution of the appeal.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of failing to account or deliver a share of a commission to one of her salesmen, issuing a written reprimand, and imposing an administrative fine in the amount of $1000. ENTERED this 23 day of May, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 23 day of May, 1990. COPIES FURNISHED: Steven W. Johnson, Senior Attorney Division of Real Estate P.O. Box 1900 Orlando, FL 32802 Attorney Raymond O. Bodiford P.O. Box 1748 Orlando, FL 32802 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Respondent is a licensed real estate salesman. He has held Florida license number 0046313 at all times relevant to these proceedings. On February 2, 1979, in the Circuit Court of the Fifteenth Judicial Circuit (Florida), Respondent was adjudicated guilty on three counts of failure to register as a securities salesman and three counts of failure to register securities, under Sections 517.03, 517.07, 517.12 and 517.302, F.S. (1973). He was sentenced to five years imprisonment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Petitioner enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 18th day of February, 1982, in Tallahassee, Florida. R. T. CARPENTER 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 18th day of February, 1982.
