Findings Of Fact Based upon my observation of Respondent, and his testimony during the proceeding herein, the documentary evidence received, including a prehearing stipulation executed by counsel for the parties and the entire record compiled herein, the following relevant facts 1/ are found. Respondent, Stewart Sax, is a real estate salesman who holds License No. 0347241. Respondent is presently employed by Choice Rentals and Realty Corporation, 3365 North Federal Highway, Fort Lauderdale, Florida. The prosecution of this matter was initiated by Petitioner against Respondent based on an Administrative Complaint filed herein, signed August 3, 1981. On July 24, 1980, Respondent submitted an application for licensure with the Petitioner. In connection therewith, Respondent answered question No. 6 in the negative by asserting "No." That question reads in total: Have you ever been arrested for, or charged with commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violation), without regard to whether convicted, sentenced, pardoned or paroled? Respondent was first arrested on April 21, 1972, when he was charged with credit card theft in Atlanta, Georgia. At this time, he was approximately 22 years old and was a student at Emory University in Atlanta, Georgia. Respondent pled nolo contendere to the charges and received three years probation and a $500.00 fine based upon this plea. Respondent contends that the credit card belonged to a girl friend's mother and he initially had the right to use that credit card. Respondent was next arrested on January 25, 1974, when he was arrested for credit card theft, public indecency and public drunkenness in Atlanta. The charges on the first two counts were dismissed and Respondent received a 30-day suspended sentence on the public drunkenness charge. Respondent was next arrested on July 24, 1980, in Fort Lauderdale, and was charged with grand larceny and issuing a worthless check. The worthless check charge was nolle prosequi and the grand larceny charge was reduced to petty theft, to which Respondent pled no contest. Respondent was placed on probation for six (6) months; he paid $50.00 court costs and adjudication of guilt was withheld. On July 24, 1980, Respondent was again arrested for driving while intoxicated and with an expired driver's license. No information was issued on the driving while intoxicated charge and Respondent pled no contest to the expired driver's license charge. He paid $25.00 for court costs and adjudication was withheld. Finally, Respondent was arrested on July 30, 1980, and charged with prowling in Fort Lauderdale, Florida. These charges were dismissed. Respondent contends that he was under a great deal of pressure when he submitted his application for licensure and was of the opinion, based on representations of his former counsel, that he did not have to reveal these matters on applications, etc.; that these matters were dropped, and would not follow him in the future. (Prehearing Stipulation) As noted above, the matter was presented based upon a prehearing stipulation, prepared by counsel for the parties whereby Respondent admitted each of the allegations as contained in the Administrative Complaint with explanations for each allegation. Evidence presented at the hearing indicated that, except for the Public drunkenness charge, all remaining charges were either nolle prosequi, dismissed without any information being filed or adjudication was withheld and sentences were probated. Respondent has enjoyed success in his field as a real estate salesman since he has been licensed. Respondent as far as the record reveals, has not had any disciplinary charges brought against him since he has been licensed as a real estate salesman. Other professionals in the area have a high regard for Petitioner, both personally and professionally as a real estate salesman. Respondent is a highly intelligent real estate salesman who, it can be assumed, understood the application for licensure which he executed to become a real estate salesman. Based on the admissions contained in the prehearing stipulation and Respondent's testimony, his failure to truthfully answer all questions on his application, he (Respondent) violated the provisions of Chapter 475.17(1), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That Respondent's real estate License No. 0347241 be REVOKED. That Respondent be afforded an opportunity to reapply for a license as a real estate salesman and that pending a decision by the Board on Respondent's reapplication for licensure, the Board spend the revocation referred to in the Recommendation above. RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.
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 The Respondent A. G. Ennis Realty, Inc. is a corporate real estate broker having been issued license number 0133016. The Respondent Thomas E. Ennis is the licensed real estate broker of record for A. G. Ennis Realty, Inc., and he holds broker's license number 0025105. The Respondent Marshall J. Hungerford is a licensed real estate salesman who has been issued license number 0042181. The Respondent Mildred B. Hardin is a licensed real estate salesman holding license number 0130139. In February, 1980, the Respondent Mildred Hardin commenced negotiations with Henry Roehr for the purchase of a lot on which he wished to build a condominium. During these negotiations, the Respondent Marshall Hungerford had deposits from ten parties for units in a condominium to be constructed. These parties wanted to live together, but they did not want to go into the particular location where the condominium was to be built because it was across the street from a public boat ramp. Negotiations on this first lot began to lag, because the owners were in Europe. The Respondent Mildred Hardin suggested that Henry Roehr purchase another lot for his proposed condominium. By letter dated March 18, 1980, Mildred Hardin forwarded a proposed contract for the purchase of Lot 35, Block 357, Unit II Replat, Marco Beach Subdivision. In this letter, the Respondent Mildred Hardin reminded Henry Roehr to keep her informed of what was happening so that Marshall Hungerford could tell his prospective buyers something. The terms of the contract for the purchase of Lot 35, generally, called for Henry Roehr to deposit $38,000 as earnest money against a selling price of $360,000. Mr. Roehr made the required deposit by check to the Respondent A.G. Ennis Realty, Inc., to be held in escrow. After Henry Roehr received assurances from the Respondent Mildred Hardin that the ten persons who had given deposit checks to Marshall Hungerford would purchase condominium units on Lot 35, Henry Roehr by letter dated April 7, 1980, authorized the Respondent Mildred Hardin to release to the seller the signed contract and check for the purchase of Lot 35. In this letter he stated that the only reason he was purchasing the lot was because of the representations that had been made to him that Marshall Hungerford had ten firm purchasers for condominium units. Before this transaction closed, the Respondent Marshall Hungerford accompanied Henry Roehr to two banking institutions for the purpose of obtaining a construction loan for the condominium units. During these visits, the Respondent Marshall Hungerford represented to the banking institutions that he had ten firm purchasers for units in the proposed condominium. The transaction closed on July 13, 1980. When Henry Roehr began to request more information about the prospective buyers of condominium units, the Respondent Marshall J. Hungerford, by letter dated July 29, 1980, forwarded to Henry Roehr the names and addresses of ten individuals who were represented to "have deposited checks with us and have expressed a desire to purchase a condominium, as proposed for the above reference project". In this letter he further stated, "its my personal opinion knowing all of these people that they are certified buyers and are interested and capable of entering into a purchase contract". When the Respondents presented no contracts for the purchase of condominium units from any of the people who were represented to be buyers, Henry Roehr suspected that he had been deceived, and tried to sell some of the condominium units himself. However, when the combined efforts of Henry Roehr and the Respondents failed to pre-sell enough units to warrant construction of a condominium, the plan to build was abandoned. The representations made by the Respondents, Marshall Hungerford and Mildred Hardin, that they had deposits from ten buyers for condominiums were false. These representations were made while they were salesmen employed by the Respondents, A.G. Ennis Realty, Inc., and the broker for A.G. Ennis Realty, Inc., Thomas Ennis. Thomas Ennis was aware of the transaction and participated in it as a broker, and collected a commission on it. Henry Roehr purchased Lot 35 in reliance upon these false representations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the licenses of the Respondents, Thomas E. Ennis, Marshall J. Hungerford, Mildred B. Hardin, and A.G. Ennis Realty, Inc., be revoked. THIS RECOMMENDED ORDER ENTERED this 6th day of May, 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 6th day of May, 1983. COPIES FURNISHED: Fred Langford, Esquire Post Office Box 1900 Orlando, Florida 32802 Thomas E. Ennis A.G. Ennis Realty, Inc. 821 South Barfield Drive Marco Island, Florida 33937 Marshall J. Hungerford Post Office Box 432 Marco Island, Florida 33937 Mildred B. Hardin Post Office Box 121 Georgetown, Florida 32039 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia, with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Karen Akinbiyi, is a licensed real estate salesperson in the State of Florida, having been issued license number SL-0642172. On June 14, 1996, Respondent filed an application (dated May 1996) 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 responded to the question 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 September 30, 1996, Respondent passed the salesperson examination and she was issued license number SL-0642172 as an inactive salesperson. From December 30, 1996, through June 4, 1997, Respondent was an active salesperson associated with Home Realty Corporation, a broker corporation trading as ERA Homeland Realty and located at 6051 Miramar Parkway, Miramar, Florida. From June 5, 1997, through the date of hearing, Respondent was "not . . . in compliance to operate in an active status due to no employing broker." (Petitioner's Exhibit 1.) Following approval of Respondent's application, and her licensure as a real estate salesperson, the Department discovered that Respondent had been involved in a criminal incident that was not revealed on her application. According to the proof (Petitioner's Exhibit 3), Respondent was arrested on August 16, 1990, and charged, inter alia, with the purchase of marijuana (cannabis), under 10 grams, in violation of Section 893.13(2)(a)2, Florida Statutes, a felony of the third degree. On August 28, 1990, an Information was filed, predicated on such offense, and on September 6, 1990, Respondent entered a plea of nolo contendere. By order of the same date, the court noted that Respondent had been found guilty of the charge, but withheld adjudication of guilt. Respondent was sentenced to (accorded credit for) time served (one day), ordered to pay various costs totaling $225.00, and fingerprinted pursuant to Section 921.241(1), Florida Statutes. Based on such incident, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the criminal incident on her application, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." (Count I), and that "Respondent has failed to disclose arrest or conviction of a crime as required by . . . [Rule 61J2-2.027(2), Florida Administrative Code] and, therefore, is in violation of [Section] 475.25(1)(e), Fla. Stat." (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be as follows: . . . The penalty for each count or separate offense 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. 1 At hearing, Respondent offered the following explanation regarding the criminal incident and her failure to disclose it on her application for licensure: DIRECT EXAMINATION * * * Q. . . . Ms. Akinbiyi, do you recall being arrested for unlawful purchase of cannabis? A. Yes, I do. * * * Q. And what happened after the arrest? A. After the arrest I was let go. I went to the phone book, looked up an attorney, talked to him over the phone, briefly told him what it is I wanted him to do. He told me to come to his office. I went to his office. He told me what he was going to do. He told me that he needed $300 to do it. I gave it to him. He gave me a receipt. He gave me a rubber stamp on the receipt, and I left. Q. Okay, and when he said he was going to take care of it, what did you believe that to mean? A. Well, I believed it to mean that it had been dismissed, and he was going to just erase it off my record, period, expunge it, take it away. Q. Okay, after that day did you have any more contact with this attorney? A. No, I didn't have any need to, because I paid him to do a job I thought he did. Q. Okay, when was the first time that this arrest was brought up again? A. When I got the letter from the Real Estate Commission, telling me that they see that I've been arrested, and I didn't answer properly to the application. . . . * * * Q. . . . when you answered the question on the application did you believe that you had been -- did you know what a withhold of adjudication was at the time? A. At the time, no. I just knew that I paid this lawyer, and everything was supposed to be okay. Q. Okay, at the time that you answered the question did you believe your criminal charge had been dismissed? A. Yes, I did. Q. . . . at any time when you were responding to the question regarding, have you ever been convicted or pled no contest to a crime, were you intending to conceal or misrepresent this crime? A. No, I was not. * * * CROSS EXAMINATION * * * Q. Ms. Akinbiyi -- A. Uh-huh (positive response.) Q. -- you testified that when you were filling out the application for your real estate license that you believed that your record have been sealed or expunged by your attorney, correct? A. Exactly. Q. Do you recall reading the last paragraph to Question Number 9, which reads, "if you intend to answer no because those records have been expunged or sealed by the Court, you are responsible for verifying expungement or sealing prior to answering no"? A. Well, it wasn't a problem, because I knew where the attorney's office was, and if I needed him I could just go back there and say, remember me, I paid you. This is my case number, and he can go ahead and look it up. Q. So did you ever actually verify that your records were sealed or expunged before answering that? A. No, I did not. No, I did not, but I just assumed it was since I paid him. Q. At the time that you were filling out this application you did have a recollection of this criminal charge? A. Yes, I did. * * * THE COURT: Let me ask you a question. You were in jail for one evening; is that correct? THE WITNESS: That's correct. THE COURT: Okay, and when you were released the next morning is when you called the lawyer? THE WITNESS: Yes, it is. THE COURT: And you went to see him the same day? THE WITNESS: Yes, I did. THE COURT: And at that time you paid him $300, and he gave you a receipt for the money? THE WITNESS: Yes, he did, that's correct. * * * THE COURT: Did you ever see the lawyer again after that date? THE WITNESS: No, I didn't. THE COURT: Did you ever appear in Court? THE WITNESS: No. THE COURT: Did you ever have any contact with the criminal justice system after your release from jail on this charge? THE WITNESS: No, sir. * * * [RE-CROSS EXAMINATION] Q. Do you remember going to court and entering a plea of no contest to this charge. . . A. I really don't . . . After I went to -- after I just spent the night, I believe the next day we did go to court. I don't know, because it was like a whole group of us. Everybody, they just said their name, and it wasn't like a one person deal. It was everybody collectively standing up going to court. So I could have. To be honest with you, I can't remember. Q. Do you remember talking to the judge? A. I remember I was in a courtroom, and then they said time served, and I said okay. And I went home, I called my husband, looked in the phone book, got an attorney and went straight to his office. Q. Do you remember being fingerprinted when you were in court? A. . . . not in court. When I got arrested I got fingerprinted. Q. Okay, but you weren't fingerprinted in court again? A. No, I wasn't. Q. Okay. Just one more question. Do you remember having to pay any costs to the Court for this charge? A. No. . . . I don't recall any charges that I had to pay myself. Having carefully considered Respondent's testimony at hearing, and having reflected further on her explanation for failing to disclose the criminal incident on her application (that she employed an attorney to expunge or seal her record, and she assumed he had done so when completing the application), it must be resolved that Respondent's explanation was lacking in sincerity or genuiness, as well as substance, and must be rejected as unpersuasive. In so concluding, it is initially observed that Respondent's version of her exposure to the criminal justice system does not conform with the objective proof of record. (Petitioner's Exhibit 3.) Notably, Respondent avers that she employed an attorney to expunge or seal her record on August 17, 1990 (the day she was released from jail, and the day after her arrest), and that she had no further contact with her lawyer or the criminal justice system after that date; however, the objective proof demonstrates that the Information did not issue until August 28, 1990, and that it was not until September 6, 1990, that Respondent, accompanied by her attorney, entered a plea of nolo contendere. The objective proof further reflects that on the same date (September 6, 1990) the court noted her guilty of the charge, but withheld adjudication of guilt and sentenced her to time served, ordered her to pay various costs totaling $225.00, and oversaw that she was fingerprinted in open court. Clearly, Respondent's version of the event does not comport with the objective proof, and it is most unlikely that a person would confuse or forget an appearance in court on a felony charge, the entry of a plea to a felony charge, or being fingerprinted in open court. Moreover, it is most unlikely that Respondent would engage an attorney the day after her arrest, and before the Information had been filed or resolved, to expunge or seal her record. Finally, had she made such a request of her attorney at anytime, it is most improbable that she would not contact or inquire further of her attorney to ascertain whether her record had been successfully expunged or sealed. In sum, Respondent's testimony that her response to item 9 on the application was, at the time, an accurate reflection of her understanding of the status of the criminal incident (that the record had been expunged or sealed) is improbable and unworthy of belief. Consequently, it must be resolved that Respondent's failure to disclose the incident was intentional.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating Subsections 475.25(1)(e) and (m), Florida Statutes, as alleged in the Administrative Complaint. It is further RECOMMENDED that for such violations, the final order revoke Respondent's license. DONE AND ENTERED this 21st day of May, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1999.
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.
Findings Of Fact At all times relevant hereto, respondent, Edwin Costa held real estate salesman license number 0017520 issued by petitioner, Department of Professional Regulation, Division of Real Estate. Respondent currently uses his license at a real estate firm located in Ocala, Florida. On March 1, 1983, respondent was arrested on various charges relating to bookmaking. On June 27, 1984, respondent pled nolo contendere to one count of bookmaking (gambling), a third degree felony. Adjudication was withheld and Costa was placed on 18 months probation and fined $10,000. After successfully serving all conditions of his probation, and paying the fine, respondent's probation was terminated on March 25, 1985. Respondent has a number of successful business endeavors in Ocala, Florida. Despite his conviction, a cross-section of businessmen testified they would continue to do business with Costa, and had complete trust and confidence with him. His creditworthiness is still considered excellent by a local bank, and Costa has secured a substantial performance bond since his conviction. His reputation in the community is one of being a moral and honest person, and former clientele would not hesitate to use his services as a realtor.
The Issue Whether Respondent, a licensed real estate broker, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate in the State of Florida pursuant to Chapters 455 and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code. Petitioner's responsibilities include the prosecution of administrative complaints. Prior to February 1993, Respondent was a licensed real estate salesperson in the State of Florida. In February 1993, Respondent filed an application with Petitioner for licensure as a real estate broker. The application provided the applicant with two boxes, one marked "yes" and the other marked "no" to the following question, instructions, and caveat: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty of 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, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES," attach the details 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 result in denial of licensure. If you do not fully understand this question, consult with an attorney of the Division of Real Estate. Respondent answered Question 9 in the negative. Respondent thereafter signed the application, including the following affidavit: The above named and undersigned applicant for licensure as a real estate broker 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, an records permit, without any evasion 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, whether and additional oath thereto shall be administered or not. On the evening of September 28, 1986, Respondent and her husband became involved in a loud argument at their home after having consumed too much alcohol. As a result, someone called the Fort Lauderdale Police Department. Respondent was thereafter arrested and charged with disorderly intoxication. On November 20, 1986, Respondent pled nolo contendere to one count of disorderly intoxication in Broward County, Florida. Respondent was fined, but adjudication of guilt was withheld. The court records reflect Respondent's name as being Katherine [sic] Lawand, which is her married name, and Kay Starr, which is the name Respondent uses for business purposes. On the evening of April 25, 1992, a virtual repeat of the incident of September 28, 1986, occurred. Again, as the result of a loud, drunken argument between Respondent and her husband, the Fort Lauderdale Police Department was called. As a result of her behavior, Respondent was arrested on the charge of disorderly conduct. On May 21, 1992, Respondent entered a plea of nolo contendere to one count of disorderly conduct in Broward County, Florida. The court records reflect Respondent's name entered on this plea as Kathline [sic] Starr. Respondent testified that she thought Question 9 on the application for a broker's license only pertained to felony crimes. Respondent testified that she does not consider herself to be a criminal and that she did not intend to mislead or deceive the licensing agency. On May 3, 1993, Respondent passed the broker licensure examination. On May 23, 1993, Respondent was issued her initial license as an inactive broker. The license number was BK0459569. Since September 24, 1993, Respondent has been actively licensed as either a broker or a broker/salesperson. At the time of the formal hearing, Respondent was licensed as an individual broker with an office at 120 East Oakland Park Boulevard, Fort Lauderdale, Florida. Following an automobile accident in Broward County, Florida, on December 12, 1994, Respondent was charged with "DUI/ Blood Alch Above 0.20" (Count I); "Driving Under the Influence" (Count II); and "Disobey Stop/Yield Sign" (Count III). On October 3, 1995, Respondent entered a plea of nolo contendere to the charge of driving under the influence of alcohol (Count II). Count I was nolle prossed and Count III was dismissed. As a result of the plea entered on October 3, 1995, Respondent was adjudged guilty of D.U.I. She was fined, placed on probation for six months, and ordered to perform 50 hours of community service. Her driver's license was suspended for six months. As a condition of her probation, she attended a Court Alcohol Substance Abuse Program D.U.I. School. The court records reflect Respondent's name as being Kay Starr Lawand. There was only minor property damage as a result of the accident involving Respondent on December 12, 1994. No person was injured.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be adopted that finds Respondent guilty of the violation alleged in Count I of the Administrative Complaint and orders that all licenses issued to her by Petitioner be revoked without prejudice to her right to reapply for licensure. It is further RECOMMENDED that Count II of the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1998
The Issue Whether Respondent is guilty of the offenses set forth in the Administrative Complaint, and, if so, what penalties should be imposed.
Findings Of Fact Petitioner is the Division of Real Estate of the Department of Professional Regulation. As such, Petitioner acts as the licensing and regulatory agency for real estate salesperson licensees. The Respondent is Jack Wilson Johnson, holder, at all times pertinent to these proceedings, of license number 0636049 issued by Petitioner. His license is currently inactive. His address is c/o Jack Lu, Inc., 8445 Pensacola Boulevard, Pensacola, Florida 32534. On or about February 26, 1996, Respondent submitted an application to Petitioner for licensure as a real estate salesperson. Question number 9 on the application read as follows: 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 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 any other state, you are responsible for verifying the expungement or sealing prior to answering “NO.” If you answered “Yes,” attach details including dates and outcome, including 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 understand the question, consult with an attorney or the Division of Real Estate. Respondent marked the “NO” box beside this question. Respondent then signed the “Affidavit of Applicant.” Above his signature was printed the following language. The above named, and undersigned, applicant for licensure as a real estate sales person under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) has carefully read the application, answers, and 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 recollection permit, without any evasions or mental reservations whatever; 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. On or about July 6, 1989, Respondent pled nolo contendere to reckless driving in Santa Rosa County, Florida, and was adjudicated guilty with a sentence of 6 months probation. Later, Respondent pled nolo contendere to a second charge of reckless driving on or about February 21, 1991. On or about January 19, 1994, Respondent pled guilty to violation of his probation on this charge. On or about March 8, 1993, Respondent pled nolo contendere to Battery in Escambia County, Florida. Adjudication was withheld. On or about May 1, 1974, Respondent pled nolo contendere to three counts of failure to register as a dealer or salesman, a felony, in Escambia County, Florida. Respondent admitted at the final hearing that he was guilty of answering “NO” to question number 9 on the application that he made to Petitioner in this case, but that this action was merely a result of “poor judgment.” Respondent offered mitigating testimony by two witnesses, establishing that he had handled real estate transactions for them to their satisfaction.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint and revoking his license. DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1998. COPIES FURNISHED: Laura McCarthy, Esquire Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack Wilson Johnson c/o Jack Lu, Inc. 8445 Pensacola Boulevard Pensacola, Florida 32534 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all pertinent times, respondent Bobbie G. Scheffer, who holds license No. 0073955, was a real estate broker for Rivard Realty, Inc. in Fort Walton Beach, Florida; and Ralph S. Ecoff was a licensed real estate salesman, employed by Rivard Realty, Inc. He holds license No. 0454969. In the spring of 1988, another salesman in the employ of Rivard Realty, Inc., Wayne Thompson, obtained the listing for the three-bedroom, one-story house at 28 East Casa Loma Drive in Mary Esther, Florida, from its then corporate owner, Roman Acts, Inc. He received information about the property from a representative of the corporation. Without verifying the information, Mr. Thompson entered it into a computer. Misled by the owner's representative, he reported the house's age as eight years. Respondent's Exhibit No. 7. In fact, the house had been built in 1974. Petitioner's Exhibit No. 4. A public water supply serves the house, but a septic tank, not a public sewer, receives wastewater from the house. Aware of these matters, Mr. Thompson, when confronted with a blank on a form labelled "WATR/SEW", filled in "Pub. Wat." Respondent's Exhibit No. 7. No more than another letter or two could have been squeezed into the blank on the form displayed on a computer video terminal. Respondent Ralph S. Ecoff saw the house in the course of showing it to prospective buyers, and decided to buy it himself. After a representative of Roman Acts, Inc. accepted his offer (but before the closing), Mr. Ecoff and a partner set about refurbishing the house. Mr. Ecoff, a septuagenarian who bought the house with the intention of reselling it, finds computers intimidating. Still another real estate salesman in the employ of Rivard Realty, Inc., Steve Kehran, volunteered to enter a revised listing in the multiple listing service computer, to let it be known that the property was again for sale. As instructed by Mr. Ecoff, Mr. Kehran raised the price and "changed the blurbage" (to read "EVERYTHING NEW AGAIN. COMPARES WITH NEW HOME. LOW INTEREST RATE," etc.) Petitioner's Exhibit No. 11. In keeping with Mr. Ecoff's instructions, Kehran relied on the superseded listing for other information about the house. That is why the age of the house was again inaccurately reported as eight years. Extrapolating innocently but inaccurately from the earlier listing's "Pub. Wat.," Mr. Kehran assumed public sewers accompanied the public water supply and filled in the "WATER/SEW" blank with the abbreviation "Comm Sew." Petitioner's Exhibit No. 11. Mr. Ecoff had read the listing from which Mr. Kehran took the information but, he testified, he did not read it carefully. Whether he read over what Mr. Kehran wrote at any time before the Stacys complained of the inaccuracies is not clear. Mr. Ecoff has said all along that he was aware the property had a septic tank. He testified to this effect at hearing and also testified that he was aware the house was more than eight years old when the Stacys agreed to buy it. If he had read the listing Mr. Kehran entered in the computer for him with proper care and due regard for the importance of its accuracy, he would have discovered the misinformation it contained. Although Mr. Stacy had physical possession of a multiple listing sheet bearing the information Mr. Kehran introduced into the computer data bank at Mr. Ecoff's behest, while he and his wife drove around with Ms. Scheffer, looking at houses, and may well have read it at that time, the evidence did not show that either Ms. Scheffer or Mr. Ecoff reiterated the information verbally. (It was not clear whether Mr. Stacy retained the sheet Ms. Scheffer furnished him after seeing the house.) Engaged by a mortgage company, an appraiser who was familiar with the neighborhood reported the true age of the house, but put its "effective age" at ten years, after two visits to the property. The appraiser's report, which recited inaccurately, as the listing had, that a public sewer served the property, was furnished to the mortgage company that financed the Stacys' purchase. Once the report reached the mortgage company, it was available to the Stacys, although they did not in fact see it, as far as the evidence showed, before the closing, which took place on August 24, 1988. On or before January 1, 1991, Mr. and Mrs. Stacy will be required to cause pipe to be installed to connect the house to a public sewer main, itself yet to be laid. Mr. Stacy has been told the hook-up will cost $1,600.00 over and above the $600.00 it will cost to install the connector. Even so, the evidence did not establish that the house's dependence on a septic tank affected its market value in 1988. The evidence also failed to show that the house's age materially affected its value. Ms. Scheffer encourages salespersons in her employ to take advantage of courses the local Board of Realtors offers, and scheduled Mr. Ecoff for every such course available. She has not personally instructed salespeople to verify information sellers give them by independent inspection. Perhaps because the practice of relying on sellers' representations is widespread, the multiple listing sheets all bear the disclaimer, "INFORMATION DEEMED RELIABLE, BUT NOT GUARANTEED." The evidence did not show how carefully Ms. Scheffer read the inaccurate listing that salesmen in her employ generated, or that she would have been or should have been aware of the inaccuracies, however carefully she had examined the listing. Although Mr. Ecoff said he knew there was a septic tank on the property because the grass was so green in part of the backyard, Mr. Stacy testified that the septic tank is buried in front of the house. It was not proven that even an experienced real estate broker like Ms. Scheffer should necessarily infer an actual age of more than eight from an effective age of ten years. In short, the evidence did not clearly and convincingly demonstrate that respondent Scheffer actually knew or had reason to know the listing was inaccurate.
Recommendation It is, in accordance with Rule 21V-18.008, Florida Administrative Code, recommended: That petitioner suspend respondent Ecoff's license for thirty (30) days. That petitioner dismiss the administrative complaint, insofar as it alleges that respondent Scheffer violated Section 475.25(1)(b), Florida Statutes (1989). RECOMMENDED this 20th day of December, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 20th day of December, 1990.
