Findings Of Fact On November 2, 1977, Marin completed the application for registration as a real estate salesman and forwarded it to the FREC. The application was received December 27, 1977. The application contains the following question. 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 parolled? Marin answered the question with the word "No". However, the evidence shows that Marin was arrested December 31, 1974, with the crime of grand larceny which charge was reduced to petty larceny. It was Marin's understanding that his arrest record had been expunged by an attorney hired for that purpose when, in fact, it had not. It was for this reason that Marin answered the foregoing question in the negative.
Findings Of Fact The Respondent, John L. Nuccitelli, is a licensed real estate broker, having been issued License Number 0064764, and he was so licensed at all times material to the issue in this proceeding. On August 20, 1979, an arrest warrant was issued in Lancaster County, South Carolina, directing that the Respondent be arrested on the charge of possession of marijuana with intent to distribute, in that he flew into the Lancaster County Airport in a Douglas DC4 four engine aircraft with approximately 131 bales of marijuana. The Respondent was subsequently indicted for this offense, and on December 4, 1979, he was found guilty in the Court of General Sessions in and for Lancaster County, South Carolina, of the crime as charged. Thereafter, the Respondent was sentenced to imprisonment for a term of five years, and a fine of $5,000, with the provision that the prison term would be reduced to probation for five years upon payment of the $5,000 fine. On July 29, 1982, the Respondent having paid the fine imposed and having fulfilled the conditions of his probation, the Court entered its Order relieving the Respondent from the sentence previously imposed, and discharging him from further probation. The Respondent had not been involved with the law prior to the incident in question, and has not been so involved since this incident. He realizes that he made a serious mistake, one which has adversely affected both himself and his family. He is the sole support of his wife and five children, and he has only done work in the real estate field since leaving the Air Force. The Respondent and his wife have been married eight years. They have two children of their own, and three children by a prior marriage. The Respondent is a caring husband and father. He is trusted by those persons in the community who know him.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that License No. 0064764 held by the Respondent, John L. Nuccitelli, be REVOKED. THIS RECOMMENDED ORDER entered on this 1st day of November, 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 1st day of November, 1982. COPIES FURNISHED: John L. Huskins, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Richard J.R. Parkinson, Esquire 603 East Central Boulevard Orlando, Florida 32801 William M. Furlow, Esquire Department of Professional Regulation - Legal Section Post Office Box 1900 Orlando, Florida 32802 Carlos B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Orlando, Florida 32801 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's real estate salesperson license based upon the alleged violation of Section 475.25(1)(m), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.
Findings Of Fact Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made: Respondent is a licensed real estate salesperson in the State of Florida having been issued license number 0606079 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was as a salesperson, c/o Century 21 Action Realty, Inc., 8904 Taft Street, Hollywood, Florida 33024-4649. Respondent obtained his Florida real estate license on or about December 11, 1993. Respondent's application for licensure as a real estate salesperson (the "Application") was filed with Petitioner on or about October 14, 1993. Question 9 of the Application asked Respondent if he had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld. Respondent answered that question in the negative. The evidence established that Respondent's answer to Question 9 on the Application was not accurate. On April 1, 1985, Respondent pled nolo contendere to a charge of possession of cocaine. Adjudication of guilt was withheld and Respondent was given a suspended sentence. At the time of Respondent's plea agreement, he was 20 years old. The circumstances surrounding his arrest, arraignment and plea indicate that Respondent did not fully understand the legal technicalities of what was taking place. Respondent entered the plea on the same day that he was arraigned and a public defender was appointed to represent him in connection with charges arising from an arrest that occurred on January 26, 1985. Respondent's arrest on January 26, 1985 took place outside a bar in Fort Lauderdale. Respondent had gone to the bar to meet some friends. While he was waiting for his friends, Respondent met an individual, S.T., with whom he was not previously acquainted. Respondent and S.T. began a conversation and talked about the possibility of going to another bar. Respondent and S.T. went to the parking lot and were sitting in S.T.'s car discussing where to go next. A police officer approached the car and observed S.T. holding a small plastic straw. According to the police report, when the police officer reached the car and asked for identification, S.T. handed the straw to Respondent and exited the car. The police officer then asked Respondent to exit the car. As Respondent was getting out of the car, the police officer saw Respondent drop the straw. The police officer picked up the straw and noticed a white powdery substance which he thought to be cocaine. He arrested Respondent and S.T. and, upon, subsequent search of the car, found a small bag containing cocaine. The amount of cocaine found is not clear from the evidence presented in this case. Because of his shock and surprise when he was arrested and the subsequent passage of time, Respondent does not remember all of the details surrounding his arrest. In particular, he does not remember S.T. handing him the straw and/or dropping it upon leaving the car. Respondent claims that he did not know that there was cocaine in the car and there is no evidence directly tying him to the cocaine. As indicated above, the case was resolved at Respondent's arraignment on April 1, 1985. Respondent does not recall all of the discussions that took place, but it was his understanding that he had not been convicted of a crime. Respondent did not understand the legal significance of the term "withheld adjudication". He was told that he was "free to go". No probation or further conditions were imposed upon him. Consequently, Respondent did not move to have the records of his criminal case sealed or expunged, even though he could have sought such an order from the court. When he was filling out the Application, Respondent believed that since no penalties had been imposed and he had not been convicted of a crime he could truthfully answer no to Question 9 on the Application. While the evidence established that Respondent did not intentionally lie on the Application, it does not appear that he took any steps to verify the accuracy of his belief before submitting the Application. Respondent first learned that there was some question regarding his criminal record when he was contacted by an investigator for Petitioner. Respondent immediately notified his supervisor at Century 21 Action Realty, where he was employed. Respondent's supervisor testified at the hearing in support of Respondent and stated that she found him to be trustworthy, honest, loyal and dependable. She indicated that she would not hesitate to hire Respondent again even after learning of his brush with the criminal justice system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding the Respondent not guilty of violating Section 475.25(1)(m), Florida Statutes, as alleged in the Administrative Complaint. DONE AND RECOMMENDED this 12th day of July, 1995, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 12th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6150 Rulings on the proposed findings of fact submitted by the Petitioner: Adopted in pertinent part in findings of fact 1. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 4. Adopted in substance in findings of fact 15. Rulings on the proposed findings of fact submitted by the Respondent: Rejected as unnecessary. Adopted in pertinent part in findings of fact 1. Adopted in substance in findings of fact 1. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 3. Adopted in substance in findings of fact 2. Adopted in substance in findings of fact 4. 8. Rejected as unnecessary. 9. Adopted in substance in findings of fact 11. 10. Adopted in substance in findings of fact 7. 11. Adopted in substance in findings of fact 7 and 8. 12. Adopted in substance in findings of fact 9. 13. Adopted in substance in findings of fact 9. 14. Adopted in substance in findings of fact 10. 15. Adopted in substance in findings of fact 10. 16. Adopted in substance in findings of fact 13. 17. Adopted in substance in findings of fact 12. 18. Adopted in substance in findings of fact 11. 19. Adopted in substance in findings of fact 5. 20. Adopted in substance in findings of fact 6. 21. Adopted in substance in findings of fact 14. Subordinate to findings of fact 14. Subordinate to findings of fact 15. Subordinate to findings of fact 16. Rejected as unnecessary. Adopted in substance in findings of fact 16. Adopted in substance in findings of fact 16. Adopted in substance in findings of fact 17. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, FL 32802-1900 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Theodore R. Gay Senior Attorney Department of Business and Professional Regulation 401 N.W. 2nd Avenue, Suite N-607 Miami, FL 33128 Harold M. Braxton, Esq. Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, FL 33156-7815
Findings Of Fact At all times material hereto, Respondent has been a licensed real estate salesman in the state of Florida having been issued License No. 0341212. The last license issued to Respondent is delinquent, and Respondent's license is in an involuntary inactive status. On or about October 28, 1986, the Respondent, while holding a delinquent involuntary inactive license as a salesman in the employ of KSP Real Estate Corporation and Mortgage Services (hereinafter "KSP"), did prepare an offer to purchase (a sales contract) on behalf of Emma L. Brown, Mary L. Howard and Betty F. Howard, as purchasers, for certain real property which was listed for sale with Lucy Charles of Homes by Charles of South Florida. Respondent received in trust $500 as an earnest money deposit which was to be placed in the KSP escrow account. In connection therewith, Respondent represented in the sales contract that, as president of KSP, he was acting as an escrow agent and that the $500 was to be held in escrow pending the outcome of the transaction. KSP is not and has not been a corporation registered as a broker with the Department of Professional Regulation, Division of Real Estate. Although the contract called for a closing within 120 days from the delivery of the abstract, the transaction did not close. At no time was the $500 placed in a KSP escrow account as was represented in the sales contract Respondent prepared. Respondent expected to be paid all or part of $2,640 as compensation for his services, calculated as 3% of the sales price of $88,000, as reflected in the sales contract. Respondent prepared and presented the sales contract offer to Lucy Charles of Homes by Charles representing himself to be a real estate broker. The purchasers had previously submitted an offer on the same property through Rickenback Associates, Inc. That offer was not contingent on FHA financing and on the purchasers refinancing their current home. When they showed that offer to their long-time friend, the Respondent, he prepared the sales contract in question in an attempt to re-negotiate the purchasers' then- outstanding offer so they could obtain the terms they wanted which had not been included by Rickenback Associates, Inc.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding Respondent guilty of Counts I and II of the Administrative Complaint and suspending Respondent's real estate salesman license for a period of six (6) months. DONE and RECOMMENDED this 15th day of March, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1988. COPIES FURNISHED: Darlene F. Keller, Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth A. Ratliff 813 Northwest 107th Street Miami, Florida 33168 James H. Gillis, Esquire Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent is a licensed real estate salesman having been issued license number 0200291. He was licensed as a real estate salesman in the employ of broker John Wesley Bridwell at all times material to these proceedings. In early 1982, Respondent came into possession of bank checks totaling $1,275 belonging to his employing broker John Bridwell and which appeared to carry the signature of Bridwell as payor. Respondent deposited these checks in various bank accounts opened and maintained by Respondent. Respondent knew the checks were stolen at the time be deposited the checks into his bank accounts. On August 11, 1982, Respondent was arrested by the Seminole County Sheriff's Department, Sanford, Florida, on the charge of depositing stolen checks with intent to defraud. Respondent confessed to this charge, and on April 15, 1983, adjudication was withheld in the Circuit Court, Seminoles County, Florida, Case No. 32-1250 CFA. Respondent was sentenced to thirty days confinement followed by ten weekends of confinement in the Seminole County Jail, ordered to make restitution of the $1,275, pay fines exceeding $1,500, and perform 200 hours of community service work.
Recommendation From the foregoing, it is RECOMMENDED: That Petitioner enter a Final Order finding Respondent guilty as charged in the three counts of the Administrative Complaint, and revoking his real estate license. DONE and ENTERED this 18th day of January, 1984, 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 January, 1984. COPIES FURNISHED: Frederick H. Wilson, Esquire Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Brian D. Rist 3181 Harbado's Ct. Apopka, Florida 32803 Harold Huff, Director Division of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802 Fred M. Roche, Secretary Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue herein is whether Respondents' real estate licenses should be revoked or suspended or whether they should be otherwise disciplined for failure to comply with the provisions of Section 475.25(1)(a) Florida Statutes (1977) by failing to disclose a fire-damaged attic to the purchasers of a house.
Findings Of Fact At all times pertinent hereto, Respondents Maureen Ann O'Malley and Frederick E. Lewis held real estate license numbers 0065689 and 0052102 respectively. Respondent O'Malley was employed as a broker-salesman by Respondent Lewis, who operated under the trade name of Lewis Realty with offices in Atlantic Beach, Florida. On or about May 17, 1979, Respondent O'Malley negotiated a contract for the sale of a house owned by Respondents to James E. and Gloria Gipson, husband and wife (Respondents' Exhibit No. 1). The house was located at 825 Plaza Drive, Atlantic Beach, Florida, and the total purchase price was $28,500. In November, 1965, a fire had occurred in the attic of the Gipson's house causing damage to the electrical wiring, and leaving portions of the rafters and attic floor in a charred and blackened condition. However, no structural damage occurred. Shortly after the fire, some of the trusses in the roof were reinforced with two by fours in order to insure the structural integrity of the premises. The house has been sold on a number of occasions since the fire occurred, and before the Respondents purchased the house in early 1979, the most recent sale was 4 or 5 years earlier. The attic is a small space between the roof and the ceiling, and is reached by climbing a ladder and crawling through an opening in the ceiling. It is too small to stand in, cannot be used for living purposes, and its value is limited to storing boxes, suitcases and the like. Prior to the closing, the Gipsons were advised by O'Malley to inspect the property, and if any problems existed, they would he corrected at Respondents' expense. The Gipsons visited the house on at least one occasion before the closing, and were given the keys for the purpose of measuring curtains and installing a television antenna. However, at no time did they inspect the attic, or were they apprised by the realtor of the fact that a fire had occurred. The attic was finally inspected by Mr. Gipson several days after the house was purchased. He found portions of the attic charred, and covered with ashes and soot. Upon being advised by the Gipsons of the attic condition, O'Malley had a contractor check the attic for structural damage. There being none, she then offered to provide cosmetic repairs by spraying it with silver paint, and laying plywood strips on the floor. However, this was unsatisfactory to the Gipsons. Respondent O'Malley did not disclose the attic condition to the Gipsons because (a) she considered the matter to be "immaterial", particularly since there was no structural damage to the attic, (b) the house had been sold on several occasions since the fire, and (c) she was not aware of any prior complaints. Respondent Lewis had only limited contact with the Gipsons, and was not involved in the negotiation of the sale of the house.
Recommendation From the foregoing findings; fact and conclusions of law, it is RECOMMENDED that Maureen Ann O'Malley be found guilty of violating Section 475.25(1)(a) Flrida Statutes (1977), by reason of failure to disclose to or buyers a fire-damaged attic in a residence located at 825 Plaza Drive, Atlantic Beach, Florida. It is further RECOMMENDED that Respondent O'Malley be given a private reprimand. It is further RECOMMENDED that the charges against Respondent Frederick E. Lewis be dismissed. DONE and ENTERED this 12th day of February, 1981, 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 12th day of February, 1981. COPIES FURNISHED: S. Ralph Fetner, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Myron S. Dunay, Esquire 912 American Heritage Life Building Jacksonville, Florida 32202 Ms. Maureen Ann O'Malley 1195 Mayport Road Atlantic Beach, Florida 32233 Mr. Frederick E. Lewis c/o O'Malley Real R:tote 1195 Mayport Road Atlantic Beach, Florida 32233
Findings Of Fact Respondent Jerry Lee Milotakis is a licensed real estate salesman having been issued license number 0380231. On August 10, 1981, Respondent filed an application for licensure as a real estate salesman with the Department of Professional Regulation, Florida Real Estate Commission (formerly known as the Board of Real Estate). In signing said application, Respondent represented that all answers and statements were true and correct and as complete as his knowledge, information and records permitted without any evasions or mental reservations whatsoever. Question numbered six of the application inquires as follows: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any muni cipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the outcome in full: Respondent answered question numbered six by stating: "Yes--traffic offenses." Respondent was arrested on November 22, 1978, for possession of cocaine, possession of narcotic equipment, and for loitering and prowling. No action was filed by the State Attorney's office. Respondent was arrested on July 22, 1979, for barbituate possession and dangerous drugs possession. No action was filed by the State Attorney's office. Respondent was arrested on January 31, 1980, for trespassing after warning. He was convicted of this offense. On April 11, 1981, Respondent was arrested for assault and battery. He was tried by a jury and was acquitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that default be entered against Respondent Jerry Lee Milotakis and that a final order be entered finding the Respondent guilty as charged in the Administrative Complaint and revoking his real estate salesman license number 0380231. DONE and RECOMMENDED this 6th day of December, 1982, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Mr. Jerry Lee Milotakis 520 NE 82nd Terrace, #5 Miami Shores, Florida 33138 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 C. B. Stafford, Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 William M. Furlow, Esquire Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
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.
Findings Of Fact The Petitioner is charged with enforcing the provisions of Chapter 475, Florida Statutes, and related rules which establish the licensure and practice standards for real estate brokers and salesmen in the State of Florida and provide for a method of enforcing those standards. The Respondent is a licensed real estate salesman, being issued license number 0443228, in accordance with Chapter 475, Florida Statutes. The Respondent's last licensed practice location was as a salesman with John Davidson Realty, Inc., at 949 Jenks Avenue, Panama City, Florida 32401. The Respondent was first licensed in January of 1985. In November of 1983, the Respondent engaged in a telephone call(s) to introduce or serve as an intermediary between two old friends. The purpose of the calls was to arrange for one of his friends to buy a quantity of marijuana from the other. This arrangement arose out of friendships based upon the Respondent's former residence in Key West, Florida. The Respondent helped his friends arrange a marijuana sale transaction; and a few months later, in approximately June of 1984, he again telephoned one of them to urge him to pay the money he owed the seller of the marijuana. That was the extent of the Respondent's involvement in the illegal drug transaction. On December 29, 1988, the Respondent, was indicted, with other defendants, on a number of related charges concerning the use of the mails and telephones in promoting and facilitating the distribution, and the conspiracy to distribute, marijuana, and the commission of acts which are felonies under federal drug laws. He pled guilty to Count V of that indictment involving the intentional use of the telephone in facilitating another in commission of acts which are felonies under federal drug laws, specifically, the distribution and conspiracy to distribute a quantity of a controlled substance: to wit, marijuana. Thus, the Respondent was ultimately convicted of a violation of Title 21, United States Code, Section 843, after his agreed plea was ultimately entered on April 18, 1989. On that date, the United States District Court for the Northern District of Florida entered a judgment convicting the Respondent of violating that Section of the United States Code, as charged in Count V of the indictment. The court sentenced the Respondent to three years of imprisonment, which was then suspended on the condition that the Respondent be confined in a treatment institution for 90 days. The Respondent carried out that sentence by spending nights in a "halfway house", while working during the day. The Respondent immediately notified the Petitioner of his conviction on or about April 24, 1989, by letter. The Respondent candidly explained his predicament to the Florida Real Estate Commission without any prompting by the Commission and asked for the Commission's guidance. Ultimately, the Petitioner responded by filing the subject administrative complaint. The Respondent also fully cooperated with the federal authorities in the prosecution of the various criminal matters relating to the confiscation of property acquired with drug sale proceeds by other individual defendants named in the original indictment. This criminal act was committed by the Respondent prior to his licensure as a real estate salesman in the State of Florida. Since the original criminal conduct, the Respondent, in early 1984, married and has since had four children. He, through his own testimony and that of his witnesses, established that he is an exemplary family man, husband and father of his children. He has been a good provider for his family and himself since he has been a very successful real estate salesman, with a higher professional certification pending for him in the field of commercial real estate. A number of real estate brokers in the Panama City area with whom the Respondent has worked as a business associate or employee attested to his excellent reputation for honesty and fair dealing in all business and personal transactions and to the purity of his personal character. Since his entry into the real estate sales profession, he has become prominent both in the actual practice of his profession and in related professional organizations and civic activities. He has truly proved himself to be a rather admirable citizen since his unfortunate illegal conduct and resulting conviction. This altercation with the federal criminal justice system was the only one on his record, and he has had no violations in a professional context since he was licensed as a real estate salesman. The Respondent's evidence establishes unequivocally that he has rehabilitated himself from the effects and personal blemish of his past miscreant conduct. No evidence was adduced to refute that showing, because the Petitioner essentially no longer disputes those facts. His rehabilitation is to such an extent that it is obvious that his prior criminal conduct, should it become known to the public, would not likely cause or induce the public to fear that he would act to his clients' detriment in the conduct of their business affairs and the handling of their funds. In summary, the peculiar circumstances of this case, starting with the fact that the Respondent himself was not directly involved in the sale of illegal drugs, but rather was seeking to "help out a friend", albeit wrongfully, through the remaining facts established, which prove his rehabilitation, have shown that his prior criminal conduct does not reflect adversely on his ability to serve as an exemplary licensed real estate professional in the State of Florida.
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 a Final Order be entered by the Petitioner finding the Respondent guilty of a conviction of a crime involving moral turpitude, as prohibited by Subsection 475.25(1)(f), Florida Statutes, and that the penalty of a private, written reprimand be imposed. DONE AND ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, 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 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6876 The following discussion is given concerning the fact proposals of the parties: Petitioner's Facts 1-9. Accepted. Respondent' s Facts The Respondent filed no proposed findings of fact. COPIES FURNISHED: Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 James H. Gillis, Esquire Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802 Glen L. Hess, Esquire 9108 West Highway 98 Panama City Beach, FL 32407
The Issue The issue in this case is whether the crime of which Petitioner was convicted in the District of Columbia, namely simple assault under that jurisdiction's law, directly relates to the activities of a real estate sales associate, thereby warranting Respondent's intended decision to deny Petitioner's application for licensure as a sales associate.
Findings Of Fact Respondent Florida Real Estate Commission ("FREC") is authorized to certify for licensure persons who are qualified to practice as real estate brokers and sales associates in the state of Florida. On September 11, 2018, Petitioner Milain David Fayulu ("Fayulu") applied for licensure as a real estate sales associate. In his application, Fayulu truthfully answered the question asking whether he had ever been convicted of a crime. Fayulu disclosed that he had been convicted of simple assault in the District of Columbia as the result of "[a]n altercation with a fellow student at American University in Washington DC," which had occurred on April 7, 2014. He further reported that he had completed all terms of sentence, which included one year of probation and 100 hours of community service. Fayulu did not mention that he also had been sentenced to 180 days of incarceration, the execution of which had been suspended, but FREC has not faulted him for this. The Judgment of conviction entered on January 15, 2016, by the Superior Court of the District of Columbia in United States v. Fayulu, Case No. 2014-CF2-006367, confirms that Fayulu pleaded guilty to one count of simple assault and received the sentence just described. As evidence of what happened on April 7, 2014, FREC relies almost entirely on the Affidavit in Support of an Arrest Warrant (the "Arrest Report"), which was subscribed and sworn to on April 10, 2014, by a District of Columbia law enforcement officer whose name is illegible (the "detective"). According to the Arrest Report, the detective interviewed three people in preparing his description of the incident: the arresting officer, the complainant, and a witness to the offense. To the extent relevant,1/ however, the entire narrative of the Arrest Report (the "Probable Cause Allegations"), with one possible, but largely immaterial exception,2/ is hearsay that is neither admissible pursuant to a recognized exception to the hearsay rule, nor corroborative of any competent, persuasive, nonhearsay evidence in the record that needs to be supplemented or explained.3/ Thus, the Arrest Report is not competent substantial evidence of the truth of the matters concerning the offense asserted therein.4/ The Arrest Report is not hearsay evidence of one fact, however; namely, that the prosecutor, and the judicial officer who approved the issuance of an arrest warrant, concluded (along with the detective) that the Probable Cause Allegations justified a charge of aggravated assault while armed ("AAWA") under D.C. Code section 22-404.01——a far more serious offense5/ than the simple assault of which Fayulu ultimately would be convicted.6/ This means that the government did not need to prove all of the Probable Cause Allegations——and, for all we know based on the instant record, could not have proved them beyond a reasonable doubt——to obtain Fayulu's conviction. The actual charging document containing the government's formal allegations against Fayulu is not in evidence. Nor is the transcript of the plea colloquy. As a result, the undersigned cannot make any findings regarding the specific factual admissions Fayulu made when he pleaded guilty to the simple assault charge. To be clear, Fayulu's guilty plea is not an admission to the truth of the Probable Cause Allegations in their entirety, for, as just explained, the government did not have the burden of proving those allegations in toto to support a simple assault conviction. If this sounds like hair-splitting, it is only because the undersigned has not recited (and will not repeat) the unproved Probable Cause Allegations. To be sure, it is extremely tempting to evaluate Fayulu's testimony against the backdrop of the alarming Probable Cause Allegations and to conclude that he is being cagey or unforthcoming about what really happened during the incident that led to his arrest and conviction. This is because the Arrest Report enjoys unearned credibility, probably owing to a general respect for law enforcement, whereas Fayulu's testimony, which depicts the incident in a much less malevolent light (as perpetrators do, we imagine), is readily, albeit unfairly, presumed to be self- serving. FREC's intended decision to deny Fayulu's application is, in fact, based on the premise that, as a matter of historical fact, Fayulu behaved as described in the Arrest Report, even though there is no competent substantial evidence in the record proving the Probable Cause Allegations. Fayulu tried to make this legal point in the proceedings before FREC, but——not being a lawyer and representing himself——he did so somewhat clumsily and managed mostly to come off sounding like he had something to hide. At hearing, after some prodding, Fayulu testified that on the evening of April 7, 2014, he and his two roommates were in a car heading home from the library, where they had been studying, when the alleged victim (the complainant) approached their vehicle, which was stopped at the exit from the library's parking lot as the driver waited for a break in traffic to pull out onto the street. The complainant spit on the driver through an open window. The driver parked the car and the three men got out. They began yelling at the complainant. According to Fayulu, the complainant threw the first punch, so to speak, which triggered a brawl that lasted for two or three minutes. Fayulu was directly involved in the fight, which was violent and caused the combatants to fall to the ground. Fayulu and his friends then decided to stop the altercation. The complainant, who afterwards remained standing on the side of the street, "seemed perfectly fine" and was "in a physically decent condition" in Fayulu's opinion, having been neither bloodied nor knocked unconscious during the affray. Fayulu and his two companions walked back to their car and left. Fayulu's account of the incident provides a sufficient basis in fact to support a conviction for simple assault under D.C. law, which is analogous to misdemeanor battery under section 784.04, Florida Statutes. Fayulu's testimony about what happened is not inherently unbelievable, moreover, and there is no competent substantial evidence in the record refuting his version of the event. While it is likely that Fayulu has tried to put himself in the best possible light consistent with the truth, and despite some obvious testimonial ducking and weaving, the undersigned cannot find that he intentionally lied. At any rate, if it weren't for Fayulu's evidence about the facts and circumstances comprising the underlying offense (as opposed to the fact of his conviction, which is undisputed), there would be none at all.
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 approving Fayulu's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of June, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 5th day of June, 2019.
