Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility for regulating the real estate profession in the State of Florida. At all times pertinent to this proceeding, the Respondent was a licensed real estate salesperson in the State of Florida, having been issued license number 0189734 in accordance with Chapter 475, Florida Statutes. On July 16, 1991, Petitioner filed an administrative complaint against Respondent which contained certain factual allegations and which charged Respondent with violating certain statutory provisions and rules regulating licensed real estate professionals in the State of Florida. The matter was assigned Case No. 9181335 by Petitioner. Thereafter, the matter was referred to the Florida Division of Administrative Hearing (DOAH) for formal proceedings pursuant to Chapter 120, Florida Statutes. Upon being referred to DOAH, the matter was assigned DOAH Case No. 91-4852. On October 31, 1991, a formal hearing was conducted by a DOAH Hearing Officer. The Respondent was represented by counsel at that formal hearing. Following the formal hearing, a Recommended Order was duly entered by the Hearing Officer which contained findings of fact, conclusions of law, and a recommended disposition of the proceeding. The Hearing Officer found that Petitioner had proved the violations alleged against Respondent by clear and convincing evidence and recommended that Petitioner impose an administrative fine against Respondent in the amount of $1,000. On April 3, 1992, Petitioner entered a Final Order that adopted the findings of fact, conclusions of law, and recommended disposition submitted by the Hearing Officer in DOAH Case 91-4852. The Final Order imposed an administrative fine against Respondent in the amount of $1,000. Respondent thereafter appealed the Final Order to the Third District Court of Appeal of Florida where it was assigned Case No. 92-01033. On June 3, 1992, Petitioner entered an "Order Granting Stay" which stayed the Final Order pending the appeal. On September 21, 1992, Respondent's appeal was dismissed by order of the Third District Court of Appeal. The Final Order entered by Petitioner on April 3, 1992, was lawfully imposed, is final, and is binding on Respondent. At the time of the formal hearing conducted in this proceeding, Respondent had not paid the $1,000 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852) on April 3, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 475.25(1)(e) and of Section 475.42(1)(e), Florida Statutes, and which suspends Respondent's license as a real estate salesperson for ten years. It is further recommended that the final order provide that the suspension of Respondent's license be terminated upon her paying the $1,000.00 administrative fine that was imposed upon her by the Final Order entered in Case No. 9181335 (DOAH Case No. 91-4852). DONE AND ORDERED this 13th day of October, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 13th day of October, 1993. COPIES FURNISHED: Theodore R. Gary, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128 Cecelia M. Smile 810 Rutland Drive, Apartment 726 Lincoln, Nebraska 68512 Darlene F. Keller, Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether Petitioner's application to take the examination for real estate licensure should be approved.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: On December 12, 1988, Petitioner, John Carl English, filed an application for licensure as a real estate salesman with the Department of Professional Regulation, Division of Real Estate. That application requested information regarding Petitioner's past and specifically asked the following: "6. 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?" Petitioner's response to question 6 was "yes." In response to question 7, Petitioner disclosed that he had been convicted of income tax evasion. Petitioner attached information to the application to further clarify his past activities and to disclose his parole status. That information provided: #6 continued: 1967-Virginia Beach, Virginia Charge: Contributing to delinquency of minors (sale of marijuana by 18 year old to 17 year old) Disposition: Fine paid. Sentence suspended. 1969-Virginia Beach, Virginia Charge: Maintaining a nusiance(sic) Disposition: Three year sentence overturned by Federal Court. Statute removed by legislature. 1976-Virginia Beach, Virginia Charge: Posession(sic) of marijuana Disposition: Sentence suspended 1977-Fort Lauderdale, Florida Charge: Posession(sic) of marijuana, hashish, cocaine. (by association) Disposition: Case dismissed 1978-Pensacola, Florida Charge: Posession(sic) of firearm by convicted felon (related directly to 1977 arrest) Disposition: Case dismissed (no convicted felon) 1982-Charges and locations: Charleston, South Carolina-marijuana conspiracy Charleston, South Carolina-marijuana conspiracy Panama City, Florida-marijuana conspiracy Fort Lauderdale, Florida-IRS information Disposition: Guilty pleas to four seperate(sic) Federal charges with consecutive sentences under B2 rule. Federal incarceration from February 27, 1982 until paroled on January 20, 1986. The aggregate sentence of twenty years, derived from four terms of five years, was mitigated by the B2 rule. #7 continued: Re: Income Tax Evasion Guilty plea was entered in 1984 under Federal Rule 20 at the Federal Courthouse, Tallahassee, Florida. The case originated in Fort Lauderdale, Florida. I pled to information supplied by myself for the year 1978 in the amount of 161,000 dollars. The resulting lien will be litigated when timely. Based upon Petitioner's record, he will be on parole until February 27, 2002. The Department received three written references from individuals who were aware of Petitioner's conviction. On March 30, 1989, counsel for the Florida Real Estate Commission advised Petitioner that his application for licensure had been denied based upon his answers to Questions 6 and 7. Specifically, that notice advised Petitioner that applicants for licensure are to be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing..." in accordance with Section 475.17(1), Florida Statutes. Upon receipt of the notice, Petitioner requested an informal hearing pursuant to Chapter 120, Laws of Florida. On May 22, 1989, Petitioner was notified that his request had been placed on the agenda to appear before the FREC on June 21, 1989. The record is unclear as to whether Petitioner appeared at that time; however, on June 26, 1989, Petitioner was informed that the FREC had denied his application. On July 17, 1989, Petitioner requested a formal hearing to present evidence regarding his qualification for licensure. That request was forwarded to the Division of Administrative Hearings for further proceedings. Linda Levine is the manager of Viscaya Title Company which is located in Jupiter, Florida. Ms. Levine hired Petitioner to work for the title company as a marketing representative. At the time of the hearing, he had been employed continuously for Ms. Levine for the last year and a half. During that time, Ms. Levine has experienced no problems with Petitioner's work and does not question his trustworthiness or honesty. Petitioner is the only other employee at the title company with access to the private office. He has been entrusted with valuables and has represented the company before the public and lending institutions without incident. Ms. Levine meets with Petitioner's parole officer monthly and was fully aware of his past prior to his employment. Barbara Ann Heilman is a real estate licensee employed with Investment Equity Real Estate. Ms. Heilman met Petitioner approximately two years ago when she listed his home for sale. From that meeting, Ms. Heilman and Petitioner developed a professional relationship. Since he was just beginning at the title company and she was in full-time real estate sales, Ms. Heilman recommended Viscaya for closings. Petitioner did a very good job. Subsequently, she has recommended him to others in real estate because he has performed very conscientiously. Ms. Heilman has entrusted Petitioner with checks and has no hesitancy in referring others to him. Ms. Heilman was aware of Petitioner's past because he disclosed it to her when she listed his home. David T. Doyle operates an insurance investment firm which handles casualty and life insurance as well as insurance investments such as pension plans and profit sharing. He has been in this area of work for twenty-two years. Mr. Doyle met Petitioner at a city council meeting approximately a year and a half to two years ago. The two men attended the meeting because of their mutual interest in a plan that was before the council; and they became friends after talking about the proposed project. Subsequently, Mr. Doyle and Petitioner began discussions regarding joint business opportunities. As a result, Petitioner has referred potential investors for projects to Mr. Doyle and the two hope to develop one of the companies. Petitioner advised Mr. Doyle regarding his past criminal record. Mr. Doyle has offered Petitioner the opportunity to become part owner of their joint business venture. Petitioner's original sentences specified he would serve two ten year terms. After cooperating with the authorities, Petitioner was successful in having the sentence reduced to two five year terms running concurrently. Petitioner was incarcerated for forty-seven months and was released on parole in January, 1986. Petitioner will be on special parole after his regular parole is terminated. Any violation of the parole may result in Petitioner being taken into custody.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order approving the application for licensure submitted by the Petitioner so that he is entitled to examination for licensure as a real estate salesman. DONE AND ENTERED this 14th day of December, 1989, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1989. APPENDIX TO CASE NO. 89-4051 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: To the extent that Petitioner's proposed findings of fact (unnumbered paragraphs with multiple proposed facts) are addressed in the findings numbered 5 through 11, they are accepted; otherwise, rejected as irrelevant, recitation of testimony not specifying fact, or immaterial. Further, Petitioner included statements of a preliminary nature which are not relevant to the issues of this case. The "findings" presented in the numbered paragraphs 1 through 4 are rejected as conclusions of law or argument. COPIES FURNISHED: John R. Howes 700 South Andrews Avenue Suite 200 Fort Lauderdale, Florida 33316 Manuel F. Oliver Assistant Attorney General Department of Legal Affairs 400 West Robinson Street Suite 212 Orlando, Florida 32801 Darlene F. Keller, Division Director Department of Professional Regulation, Division of Real Estate 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 The Department is the agency charged with the licensing and regulation of real estate salesmen and brokers. At all times material to these proceedings, Respondent Peebles was a licensed real estate broker in Florida, having been issued license number 0396895. The last license issued was placed at 2690 52nd Street North, St. Petersburg, Florida. The home address listed with the Florida Real Estate Commission was Post Office Box 40063, St. Petersburg, Florida. On April 7, 1987, the Respondent entered a plea of guilty to the crime of credit card fraud in the United States District Court Middle District of Florida, Case No. 86-215 Cr- Orl-19. The crime was a felony in that the alleged acts involved the unauthorized use of access devices (credit cards) to obtain items of value aggregating $1,000 or more in a one-year period. The case was in federal court because the offense affected interstate and foreign commerce. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. However, the crime did involve fraudulent or dishonest dealings. Upon acceptance of the Respondent's plea, the court adjudicated the Respondent guilty and sentenced him to three years of imprisonment at Maxwell Air Force Base in a minimum security federal prison. In addition, the Respondent was ordered to make restitution of $60,590.00, and pay court costs. The sentencing occurred on April 7, 1987. A timely appeal from the judgment and sentence was not taken by the Respondent. The Respondent did not notify the Department of his guilty plea and subsequent conviction within the thirty-day period required by Section 475.25(1)(p), Florida Statutes. A Motion for New Trial based upon the ground of newly discovered evidence, was filed by the Respondent in the criminal case on March 1, 1990. The United States District Court, Middle District of Florida, has not ruled on the motion. Mitigation The Respondent does not currently have the financial ability to pay any fines if that penalty were to be imposed upon him in this case. The Respondent failed to notify the Florida Real Estate Commission of his conviction because he was under extreme stress when the conviction occurred and he was incarcerated.
Recommendation Based upon the findings of fact, conclusions of law, and the mitigation presented by the Respondent, it is RECOMMENDED: That the Respondent be found guilty of the allegations in Counts I through IV, which were proved at hearing. That the Respondent's real estate broker's license be revoked for seven years. DONE and ENTERED this 9th day of July, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 9th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0224 The Department's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #3, #4 and #5. Accepted. See HO #5. Rejected. See HO #9. Accepted. See HO #7. Rejected. Irrelevant. COPIES FURNISHED: James H. Gillis, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert J. Peeples Post Office Box 40063 St. Petersburg, Florida 33743 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue Whether Petitioner should be disqualified from taking the real estate salesman license examination based on his alleged failure to disclose on his licensing application a prior arrest and conviction for possession of marijuana.
Findings Of Fact On December 19, 1980, Schwartz filed with the Board his application for licensure as a real estate salesman. In answer to the application's Question No. 6: "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?" (R-1), Schwartz answered, under oath, "Yes." If an applicant answers "Yes", the application asks for details, including the outcome. Schwartz responded: 2.28.69 Possession Marijuana Broward Cty. Sentenced 31 months, Released 4/30/71, No Further Record. (R-1.) He further explained his answer in a letter attached to the application: Sirs: In regard to question #6, I was arrested 2.28.69 in Broward County for possession of a small quantity of marijuana. Sentenced by Judge Robert Tyson in Broward County Criminal Court, Ft. Lauderdale, Fl in June of that year to two years, seven months. Released M.C.R. on 4/30/71. No problems since. H. Jeffrey Schwartz (R-1.) As part of the application, Schwartz executed an affidavit which provides in part: The above named, and undersigned, applicant for licensure as a real estate salesman, upon being duly sworn, deposes and says that he is the person so applying, that he has carefully read the foregoing application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete, as h[is] knowledge information and records permit, without any evasions or mental reservations whatsoever, . . . (R-1.) In answering Question No. 6, Schwartz failed to disclose that he was indicted, arrested, and subsequently convicted of felonious possession of marijuana by the Hustings Court of the City of Richmond, Virginia, on January 31, 1968. Court records indicate that Schwartz, then 19 years old, pled not guilty to the charge; that he was represented by counsel during trial; and that upon hearing the evidence the court found him guilty and returned him to jail pending a pre-sentence-investigation. Subsequently, on March 18, 1968, the court suspended imposition of sentence "during. . .good behavior or until further order of this Court" (R-4), ordered him to pay costs of court, and placed him on supervised probation for an indefinite period. (R-4.) Schwartz then moved to Florida. In February, 1969, he was convicted of felonious possession of marijuana by the Circuit Court of Broward County and sentenced to 31 months at hard labor. On April 30, 1971, after serving his sentence, he was extradited by Virginia authorities on grounds that his Broward County conviction violated the "good behavior" condition of his earlier suspended sentence. After a hearing, at which Schwartz was again represented by counsel, the Hustings Court found he had not violated the provisions of his 1968 suspended sentence, and released him. At that time, Schwartz was 22 years old. (Testimony of Schwartz; R-4.) The Board does not contend that these two prior criminal convictions occurring over 12 years ago render him unqualified for examination and licensure as a real estate salesman. Since that time, Schwartz has been a law-abiding and responsible individual. He has conducted research and performed feasibility studies for various commodity marketing firms, and has gained the respect and confidence of his employers. On March 25, 1981, his civil rights were restored- -except to possess or own a firearm--by order of the Governor and Cabinet of Florida. (Testimony of Schwartz; P-1, P-2, P-3, P-4.) The Board seeks to deny Schwartz's license application based solely on his failure to fully disclose on the application his prior arrest and conviction for marijuana possession in 1968. Schwartz's defense is that he honestly believed the 1968 offense in Virginia was a juvenile matter, not a criminal offense; and that Question No. 6 on the licensing application did not cover juvenile offenses or adjudications. In reply, the Board acknowledges that Question No. 6 is ambiguous with respect to whether information concerning juvenile offenses is required. It follows that, if Schwartz--rightly or wrongly--believed that his 1968 offense was juvenile in nature, his answer to Question No. 6 was not unreasonable and cannot fairly demonstrate lack of honesty, truthfulness, and good character. (Prehearing Stipulation, Acknowledgment of Board Counsel.) Schwartz's testimony that he sincerely believed his 1968 offense to be juvenile in nature, and thus outside the purview of Question No. 6, is rejected as unworthy of belief. His assertion is uncorroboratcd by any independent evidence and is inconsistent with the effect of the following: The Official Court Records. These records, on their face, indicate that Schwartz was charged with and convicted of a criminal offense in 1968. The Procedures Used to Convict Him. At his 1968 trial, he pled not guilty; was represented by defense counsel--who unsuccessfully moved the court to strike the evidence as insufficient to support a judgment of guilty; and, after being found guilty was returned to jail pending pre-sentence investigation. It is unlikely that a 19-year-old could go through such an experience without realizing that he was being charged with and convicted of a crime. His Extradition and Return to the Virginia Court. His subsequent criminal conviction in Florida led to his extradition and return, under guard, to the Richmond Court of Hustings for alleged violation of probation imposed pursuant to his 1968 conviction. After hearing, where he was again represented by counsel, he was reinstated to probation. It is unlikely that Schwartz, then 22 years old, did not understand--by this second encounter with defense counsel and the Court of Hustings--that his 1968 offense was a crime, and that he had been convicted in a criminal, not a juvenile proceeding. Schwartz's Demeanor and Intelligence. Schwartz's demeanor as a witness showed him to be an articulate and intelligent individual. As a marketing analyst, he is required to conduct research and perform studies upon which others can rely. Such work requires rational investigation and analysis. His ostensible conclusion that the 1968 offense was a juvenile proceeding was not the result of diligent investigation and analysis: it represents a departure from the analytical habit he has developed in the working environment. (Testimony of Schwartz; R-4.) Since Schwartz's assertion that he genuinely believed his 1968 conviction was a juvenile matter is rejected, it follows that his answer to Question No. 6 was incomplete and evasive. With regard to the traits of honesty and truthfulness, it places his character in serious question. To the extent the parties' proposed findings of fact are incorporated in this Recommended Order, they are adopted; otherwise, they are rejected as unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of H. Jeffrey Schwartz for licensure as a real estate salesman be denied, without prejudice to his right to reapply in the future. DONE AND REC0MENDED this 19th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1981.
Findings Of Fact Respondent took the examination for real estate salesman and was licensed December 16, 1982. His license was last renewed in December 1984 (exhibit 1 and Price testimony). At all times relevant hereto he was licensed by Respondent as a real estate salesman. By judgment dated-May 10, 1985, Buford D. Price was convicted of murder in the third degree, possession of cocaine, and possession of narcotic paraphernalia. Respondent was sentenced to seven (7) years imprisonment on the murder charge, imposition of sentence was withheld on the narcotic charges and he was placed on probation for five (5) years to run consecutively to the imprisonment. Respondent expects to be released from prison by June 1988 although his current release date is June 8, 1989. For the past three months he has been working outside prison on the highways and in communities. Prior to his arrest and incarceration Respondent worked principally for property management companies and Pulte Homes. As owners of the property leased or sold their salesmen do not need a real estate license to sell or lease such property only.
Findings Of Fact The Respondent holds Real Estate Salesman's License No. 0355517 issued by the Board of Real Estate. Petitioner is employed as a real estate salesman at Norma Star Realty, Key Largo, Florida. During October, 1980, the Respondent applied for licensure as a real estate salesman with the Board of Real Estate. His application was approved, and the Respondent was admitted to the examination, which he passed. The Board of Real Estate issued a real estate salesman's license to the Respondent during December, 1980. In applying for licensure, the Respondent filled out the Board of Real Estate's standard application form. Paragraph 6 of the form sets out the following inquiry: 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? The Respondent answered "No" to this inquiry. The Respondent has been arrested on several occasions. On July 29, 1964, he was arrested in Las Vegas, Nevada, on a charge of sodomy. On August 6, 1964, he was arrested in Las Vegas, Nevada, on a charge of rape. On May 22, 1966, he was arrested in Las Vegas, Nevada, on the charge of notorious cohabitation. On January 31, 1969, he was arrested in Miami, Florida, on the charge of board bill fraud. All of these charges were ultimately dismissed. The Respondent was neither tried nor convicted in connection with any of the charges. The Respondent had been licensed as a real estate salesman in the State of Michigan. While in Michigan, he retained counsel, now deceased, who advised him that all of the Las Vegas arrests had been expunged from the Respondent's record, and that the Respondent could respond in the negative to inquiries as to whether he had ever been arrested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered by the Department of Professional Regulation, Board of Real Estate, dismissing the Administrative Complaint filed against the Respondent, Michael Timothy McKee. RECOMMENDED this 10th day of December, 1981, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 10th day of December, 1981. COPIES FURNISHED: Harold W. Braxton, Esquire 45 S.W. 36th Court Miami, Florida 33135 Arthur L. Miller, Esquire 9101 S.W. 66th Terrace Miami, Florida 33173 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent, James K. Hart (Hart), was at all times material hereto licensed as a real estate broker-salesman in the State of Florida, having been issued license number 0302051. On November 26, 1986, in the Criminal Court of Washington County, Tennessee, Hart entered a voluntary plea of nolo contendere to the felony charge of attempt to commit a felony (conspiracy to distribute cocaine in excess of 30 grams). On October 6, 1987, the court found Hart guilty, and he was sentenced to three years confinement and ordered to pay a fine of $75,000. Hart did not notify petitioner within thirty days of having pled nolo contendere or having been convicted of such felony. Hart served 10 months and 27 days of his sentence in the county jail at Johnson City, Tennessee, and then, on August 27, 1988, was released to serve a two-year term of probation. Currently, Hart is serving his two-year term of probation, and reporting to authorities in Broward County, Florida. Hart is currently 50 years of age, and employed to sell kitchen cabinets. From such employment he grosses an income of $25,000 a year. At hearing, Hart offered proof that, as a consequence of his conviction, he owed approximately $220,000 to members of his family and his attorneys. According to Hart, absent the ability to practice as a real estate salesman, his chosen profession, he has no expectations of paying such debts or of providing for his retirement years. While the offense for which he was convicted involved a conspiracy to distribute cocaine, he avers that he has never used drugs, but committed the offense solely because of greed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the real estate broker-salesman's license of respondent, James K. Hart, be revoked. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of June 1989. WILLIAM J. KENDRICK 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 30th day of June 1989. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Not relevant. Addressed in paragraph 2. Addressed in paragraph 4. COPIES FURNISHED: STEVEN W. JOHNSON, ESQUIRE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801 KENNETH G. STEVENS, ESQUIRE 412 NE 4TH STREET FORT LAUDERDALE, FLORIDA 33301 DARLENE F. KELLER, DIVISION DIRECTOR DIVISION OF REAL ESTATE DEPARTMENT OF PROFESSIONAL REGULATION 400 WEST ROBINSON STREET POST OFFICE BOX 1900 ORLANDO, FLORIDA 32801
The Issue At issue is whether respondent's license as a real estate salesman should be disciplined for the alleged violations set forth in the administrative complaint. Based on the evidence, the following facts are determined:
Findings Of Fact At all times relevant thereto, respondent, Kevin P. Sheehy, held real estate salesman license number 0203610 issued by petitioner, Department of Professional Regulation, Division of Real Estate. The license is currently in an involuntary inactive status. On October 14, 1983, respondent was convicted in the United States District Court for the Middle District of Florida on the charges of (a) conspiracy to import marijuana and (b) importation of marijuana. For this he received a four year sentence on each count to run concurrently and a special parole term of five years. According to his counsel, he began serving his sentence on September 5, 1985 at Eglin Air Force Base. He is eligible for parole around April, 1987. Prior to his conviction, respondent was employed as a real estate salesman in a real estate firm in Tavanier, Florida. When Sheehy is released, his former broker intends to offer him a job as a salesman, assuming Sheehy holds a license, for the broker found Sheehy to be honest, trustworthy, productive, and a hard worker. This was corroborated by another person in the community. Both witnesses urged that Sheehy, who is 27 and afflicted with juvenile diabetes, be given the opportunity to pursue a livelihood when he is paroled. There is no evidence that Sheehy failed to notify the Division of Real Estate of his felony conviction within thirty days after the date of his conviction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts VII and VIII of the administrative complaint, and that ,, his real estate salesman license be suspended for eighteen months. The remaining charge in Count XIX should be DISMISSED. DONE and ORDERED this 9th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1986.
Findings Of Fact At all times relevant hereto Frank LaRocca, Respondent, was the holder of Real Estate Broker License Nos. 0050488, 0236407 and 0170796 issued by the Florida Real Estate Commission. On or about July 12, 1989, the Respondent, in the United States District Court, Middle District of Florida, upon a verdict of guilty rendered by a jury, was found guilty of five counts of conspiracy to commit bank fraud, a felony. On or about July 12, 1989, Respondent was sentenced to imprisonment for four years. On or about August 1, 1989, the United States District Court Judge ordered a stay of the judgment against Respondent pending completion of Respondent's appeal. Frank LaRocca was a vice-president of the Central Bank in Tampa, Florida, when he retired in May 1984 after working at this bank for 31 years. During this period, he enjoyed a good reputation in the community. Upon his retirement from the bank, he became an active real estate broker principally investing in real estate. The transactions which formed the bases for his conviction in federal court involved bank loans on condominiums he and three other partners purchased. These bank loans had all been repaid at the time of Respondent's trial but one, which had been refinanced by the bank.
Recommendation Taking all these factors into consideration, it is recommended that the licenses of Frank LaRocca as a real estate broker be revoked, but the revocation be stayed pending completion of his appeal to the court of appeals or two years whichever first occurs. At that time, depending upon the action of the court of appeals, his license be revoked or these proceedings dismissed. ENTERED this 7th day of February, 1990, in Tallahassee, Florida. K. N. AYERS 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 7th day of February, 1990. COPIES FURNISHED: Steven W. Johnson, Esquire Kenneth E. Easley Division of Real Estate General Counsel 400 W. Robinson Street Department of Professional Orlando, FL 32801-1772 Regulation 1940 N. Monroe Street Frank LaRocca Suite 60 Tallahassee, Florida 32399-0792 4814 River Boulevard Tampa, FL 33603 Darlene F. Keller Division Director Division of Real Estate 400 W. Robinson Street Post Office Box 1900 Orlando, FL 32801
Findings Of Fact The Petitioner made application for licensure as a Florida real estate salesman on November 20, 1990. His application was received by the Respondent on December 12, 1990. The Respondent advised the Petitioner by letter dated February 28, 1991 of its denial of the Petitioner's application on February 20, 1991 and of the Petitioner's right to a hearing pursuant to Chapter 120, Florida Statutes. The Petitioner filed a timely request for a formal hearing. The denial of the Respondent's application for licensure was based upon the Petitioner's answers to Question Nos. 7 and 15 on the application. Question No. 7 stated: "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?" The Petitioner answered "yes" to Question No. 7 and gave the following details: On June 26, 1986 I pleaded guilty to one count of sale or delivery of dilaudid, a second degree felony, and was sentenced to four (4) months in jail with a reduced sentence at 73 days with no probation. Question No. 15 stated: Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending? Have you ever resigned or withdrawn from, or surrendered, any license, registration or permit to practice any regulated profession, occupation or vocation while such charges were pending? The Petitioner answered "no" to both parts of Question No. 15. On November 16, 1985, the Petitioner was arrested and subsequently plead guilty to selling Dilaudid, a controlled substance. The court sentenced the Petitioner to spend time in a halfway house and pay a $5,000.00 fine. The parties stipulated that this was a felony conviction. The Petitioner had been previously licensed as a Florida real estate salesman and upon his conviction, had notified the Respondent, as required by law. After notification of the Petitioner's conviction, the Respondent instituted an administrative complaint against the Petitioner to revoke his Florida real estate license. On February 18, 1987, the Respondent entered its Final Order revoking the Petitioner's license because of his conviction of a felony. The Petitioner explained that he incorrectly answered Question No. 15 by mistake and without the intent to mislead the Respondent. The Petitioner pointed out that he had originally notified the Respondent of his conviction and had revealed his conviction in his answer to Question No. 7 on the application. The Petitioner introduced letters from friends and associates that he was a person of good character, who was fully rehabilitated. The Petitioner stated that he had been a drug salesman and that he had been approached by a woman whom he knew and who asked him to provide Dilaudid to her for a relative who was dying of cancer. The Petitioner provided the woman with the Dilaudid; she paid him a token amount of money "for his trouble"; and the Petitioner was arrested in a "sting" operation in which the woman was participating. The court sentenced the Petitioner to four (4) months in a halfway house and no probation. The Petitioner appeared contrite and rehabilitated. He possesses the good character necessary for licensure as a Florida real estate salesman.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the Petitioner should be re-licensed as a Florida real estate salesman. DONE AND ENTERED this 18th day of October, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 18th day of October, 1991. COPIES FURNISHED: Darlene Keller, Division Director Division of Real Estate P.O. Box 1900 Orlando, FL 32802-1900 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Larry F. Bryant 4402 Travelers Road Jacksonville, FL 32210 Joselyn M. Price, Esq. Department of Legal Affairs 400 West Robinson Street Suite 107 South Orlando, FL 32801
