The Issue The ultimate issue for determination at final hearing was whether Petitioner's application for licensure as a real estate salesperson should be approved.
Findings Of Fact In October 1992, Petitioner filed an application with Respondent for licensure as a real estate salesperson, together with the required fee. The application asked several questions, including in pertinent part: Question 9: if Petitioner had been "convicted of a crime, found guilty or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld," and Question 13: if Petitioner had had a license to practice any regulated profession revoked upon grounds of fraudulent or dishonest dealing or violations of law. Petitioner responded in the affirmative to both questions and provided written documentation and statements regarding the questions. Petitioner attached to her October 1992 application for licensure various letters to support her application. The letters included one from her probation officer indicating her compliance with her probation; from the local board of realtors indicating that no complaints had been registered against Petitioner during her membership with them, which was from 1979 to 1982 and 1990 to 1992; and from her present employer who is a licensed real estate agent and has employed Petitioner since 1989. On October 21, 1992, Respondent denied Petitioner's application for licensure as a real estate salesperson. The denial was based upon her response to questions 9 and 13 on the application, specifically her 1991 conviction and sentence and the 1992 revocation of her real estate salesperson license. On May 29, 1991, Petitioner plead nolo contendere to three felony counts of grand theft in the third degree. She was placed on probation for five years with special conditions, and adjudication of guilt was withheld. The special conditions of Petitioner's probation were that she would make restitution in the amount of $19,864.52, that she would perform 500 hours of community service, that she would fully cooperate with the State Attorney's Office in the investigation of the criminal activity in which she was involved, and that the probation may be terminated, upon motion, after 30 months. The theft involved a scheme devised by Petitioner's "boss" to obtain funds, beyond entitlement, from the City of Miami. Petitioner was employed as a bookkeeper by an elderly center from 1986 to 1988, which provided transportation, lunches and recreational activities for senior citizens. The center received funds from the City of Miami to operate by being reimbursed for monies paid to vendors. From 1986 to 1988, the center was performing poorly economically. In order to obtain additional monies, the invoices of vendors who did business with the center were inflated or increased and submitted by the center to the City of Miami for reimbursement. As bookkeeper, Petitioner was instrumental in the scheme. The difference between the actual cost and the inflated cost was retained by Petitioner and her boss and distributed at the end of the year to the center's employees, including Petitioner and her boss. Petitioner and her boss controlled the illegally obtained funds. At the end of the center's budget year, which was June 30th of each year, the center was withholding back payments to the U.S. Internal Revenue Service (IRS), using the funds held to pay salaries. As a result, a debt to IRS was created, and when IRS attempted to collect on the debt in 1988, the scheme was discovered and stopped. Petitioner cooperated fully with the State Attorney's Office. At the time of her conviction, Petitioner was licensed by Respondent as a real estate salesperson. Less than a month after her plea of nolo contendere to the grand theft charge and sentence, in June 1991 Petitioner notified Respondent of her conviction and sentence in accordance with statutory provisions regulating the practice of her profession as a licensed real estate salesperson. No evidence of any other conviction was presented. Subsequently, on or about October 30, 1991, an administrative complaint was filed by Respondent against Petitioner based upon her conviction. Petitioner admitted the allegations contained in the administrative complaint. She saw no need to deny the allegations, since she had reported the incident to Respondent. To Petitioner's shock and surprise, in a Final Order dated February 14, 1992, Petitioner's license as a real estate salesperson was revoked by Respondent. Petitioner had been licensed for 13 years without a complaint being filed against her. On February 13, 1992, Petitioner's probationary terms were modified by the court due to her inability to pay the $19,864.52 restitution. The modification included, among other things, that Petitioner was only required to pay monthly the restitution to individuals, which totaled $1,700, that the restitution to the City of Miami could be paid through community service at $10.00 per hour for each month that Petitioner was unable to pay, and that probation could be terminated early after 30 months if restitution was paid in full. By March 9, 1993, Petitioner had completed 500 hours of community service in accordance with the original court order, and for compliance with the modified court order, she had completed 235 hours of community service and paid $125.00 restitution to individuals. Prior to her conviction and license revocation, in 1989. Petitioner was employed with a real estate broker at Allied Associates of the South, Inc. (Allied Associates), in Miami Springs, Florida, as a sales associate, and continued in that position until sometime in 1991 when, due to economic constraints on Allied Associates, the broker cut her staff, choosing a more experienced salesperson over Petitioner. During her employment as a sales associate, no complaints were received by Allied Associates against Petitioner, and no money which was entrusted to her was reported missing. Allied Associates received many complimentary remarks from clients and real estate brokers alike. Subsequently, in November 1991, the broker re-employed Petitioner as a sales manager at Allied Associates. Petitioner informed the broker of her conviction and the circumstances of her conviction. The broker has allowed Petitioner to manage the financial books of the business with no problems. And Respondent has audited Allied Associates' financial books without citing a problem. Furthermore, Petitioner has handled escrow deposits and cash without any problems. Since October 1992, Petitioner has been working with Allied Associates as a sales manager on a part-time basis due to financial constraints experienced by Allied Associates. She has continued to handle escrow deposits and cash without any problems. Moreover, the broker/owner of Allied Associates has no hesitation in putting Petitioner in a position of trust. Further, Petitioner has assisted in the guidance of Allied Associates' sales associates.
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 allowing Petitioner to take the real estate salesperson's examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October 1993. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7368 Petitioner's proposed findings of fact. Petitioner's proposed findings of fact consists of one paragraph with several sentences. 1. Substantially adopted in findings of fact 2, 4, 5, and 7-14; but rejected, regarding the second sentence, as unnecessary to the determination of the issues of this case and rejected, regarding the sixth sentence, as constituting argument, conclusions of law, or recitation of testimony. Respondent's proposed findings of fact. Substantially adopted in finding of fact 1. Substantially adopted in findings of fact 1 and 4. Substantially adopted in finding of fact 4. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 11. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9; but rejected, regarding notice and failure of Petitioner to appear at the informal hearing, as unnecessary to the determination of the issues of this case. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. Substantially adopted in finding of fact 5; but rejected, regarding the first sentence, as constituting argument, conclusions of law, or recitation of testimony and rejected, regarding the last sentence which indicates that only Petitioner received and used the monies, as contrary to the evidence present. Substantially adopted in finding of fact 8. Substantially adopted in findings of fact 12-14. Note: Respondent proposed finding of fact is very close to constituting recitation of testimony. Substantially adopted in finding of fact 13. Note: Respondent proposed finding of fact is very close to and constituting recitation of testimony. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. COPIES FURNISHED: Marina P. Cintron 151 Fairway Drive #2301 Miami Springs, Florida 33166 Manuel E. Oliver Assistant Attorney General 400 West Robinson Street, Suite 107 South Orlando, Florida 32801 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
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, Evers Aurubin, is a licensed real estate salesperson in the State of Florida, having been issued license number 0650984. On February 24, 1997, Respondent filed an application (dated February 12, 1997) 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 June 9, 1997, Respondent passed the salesperson examination and he was issued license number 0650984 as an inactive salesperson. From July 17, 1997, through the date of the hearing, Respondent has been an active salesperson associated with The Keyes Company, a broker corporation located at One Southeast Third Avenue, Miami, Florida. Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department discovered that Respondent had been involved in an incident that was not revealed on his application. According to the Certified Record Search (Petitioner's Exhibit 1), attested to by the Clerk of Courts, Dade County, Florida, their records revealed that Respondent was arrested on February 21, 1991, for "obstructing street," convicted on February 22, 1991, and sentenced to and credited with time served (overnight detention). No further record existed concerning the nature of the charge since, according to the clerk's certification "pursuant to Florida Rules of Criminal Procedure 2.075, Retention of Court Records, the requirement for retaining misdemeanor cases under this rule is 5 years, therefore the file is unavailable." Consequently, there is no record evidence of the specific provision of law Respondent was convicted of violating and, therefore, no showing that the offense was criminal and, if so, the degree of felony or misdemeanor. Upon discovery of such information, the Department apparently apprised Respondent of its discovery and requested an explanation. Respondent addressed the Department's concerns by letter of July 16, 1998, as follows: I,m writting (sic) this letter to explain the incident of my arrest and the reason I answer not to the question on my application for the real estate license. There in the Amocco (sic) Gas Station on 27th Avenue close to 135th St., I gas-up there a few time. On the night of 2-21-91 in my way home from work, I stop to gas-up while doing so I noticed a young lady at the stop sign, but previously I thought that I saw her inside the gas station. By curiosity I drove by to talk to her, I asked her how are you doing just to have a conversation with her. She approached and ask me do I have $20.00 I said I have $9.00 to my surprise she said can she go with me I laugh then she walk toward the back of the car. All the doors of the car were locked so I did not have any intention of letting her in. I put my head down to look for the stack (sic) shift because my car was not automatic so I can put it on first gear to go, when I raised my head I saw an unmarked car pull in front of me vertically at the same time two to three Police car pull-up behind me, they ordered me out and arrested me, they took me to the Police Station to take me to jail that,s there (sic) I find out she was an under cover cop or working for the Police. I ask one of the officer when will I get out he answer probably the next morning because this is a minor offense. In the morning they took me to the court house the officer there told us, those of us that are there for the first time it is better to plead guilty, if we plead no contest or any other way we will have to come back to the court spend more time since this is a very minor case, plead guilty and we will be out the same day. I was working did not have time to come back, so when the Judge called me and asked me how do I plea I said guilty then they let me out the next (sic) morning. The cause of the arrest remain unclear to me. Because I find out that they arrested me for mentioning money, but I did not enter to any agreement what so ever with the lady and I did not mention anything about sex. Since it was a very minor case practically nothing I never pay any attention to it, that,s why I answer no to the question on the applycation (sic). I regret the incident very deeply and I will not let it happen to me ever again. Thereafter, on October 21, 1998, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid incident on his 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 in his real estate license application the information required under Rule 61J2- 2.027(2), Fla. Admin. Code, and therefore, 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: . . . [T]he 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 Consistent with the explanation he offered the Department in his letter of July 16, 1998, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate reflection of his understanding of the significance of the charge. According to Respondent, who was not represented in the matter, it was his understanding that the charge ("obstructing street") was a non-criminal matter; that he was unfamiliar with the process, as well as scared; that he pled guilty to the charge so he would not have to return; and thereafter was released with credit for time served (an evening of incarceration). There was no other penalty imposed for the incident (no fine or probation), and Respondent has never been charged with any other offense. Here, Respondent's explanation for his failure to disclose the information regarding his arrest and conviction is credited, and it is resolved that, at the time he submitted his application, Respondent did not intend to mislead or deceive those who would be reviewing his application. In so concluding, it is observed that Respondent's testimony was candid, the nature of the incident was not shown to be significant, and Respondent's understanding of the matter as non-criminal was, given the nature of the charge and Respondent's lack of experience with the judicial system, reasonable. Moreover, as heretofore noted, the court record fails to disclose, and the Department offered no proof to demonstrate, the provision of law violated or its significance.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of April, 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 23rd day of April, 1999.
The Issue Should Petitioner, Darius Jermaine Santiago's, application for a real estate sales associate license be granted.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is an applicant for licensure as a real estate sales associate. He is 36 years old and has lived in Florida since June 2004. He works in a Subway restaurant. Respondent is the state agency responsible for licensing real estate professionals in the State of Florida and has the statutory authority to approve or deny Petitioner's application. Petitioner’s application discloses the following criminal offenses: Indecent exposure [Exposed sexual organ to law enforcement officer] Volusia County, Florida Date of offense 7/28/2005 Pled no contest; adjudication withheld, 6 mos. probation, fined. Possession of cannabis, possession of narcotic paraphernalia, [Possession of cannabis not more than 20 grams] Volusia County, Florida Date of offense 2/9/2009 Completed a “Level I” program, charge Nolle Prosequi Trespassing of conveyance [Accused of entering a truck without permission] Volusia County, Florida Date of offense 5/12/2009 In February, 2010, Petitioner pled nolo contendere to the charge referenced in 3c. He has performed 15 of 25 hours of community service imposed by the Court. On October 2, 2009, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are: C. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181, F.S. Applicant has not had sufficient lapse of time, without government supervision, to establish rehabilitation by being crime free. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Real Estate, Florida Real Estate Commission, enter a final order denying Petitioner, Darius Jermaine Santiago’s application for licensure. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 6th day of April, 2010. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Darius Jermaine Santiago 1534 Dunlap Drive Deltona, Florida 32725 Thomas W. O’Bryant Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Roger P. Enzor, Chair Real Estate Commission 400 W. Robinson Street, N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be determined are whether Respondent violated Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), and 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2-14.009, as alleged in the Administrative Complaint, and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the real estate industry in the State of Florida, pursuant to Section 20.165 and Chapters 455 and 475, Florida Statutes. At all times material to this proceeding, Respondent was a licensed real estate sales associate, having been issued license number SL 706026. During the time relevant to this case, Respondent was a sales associate affiliated with Jacksonville Home Finders, Inc., a brokerage company located in Jacksonville, Florida. Katrin Rabren was the broker/owner of Jacksonville Home Finders, Inc. (Homefinders). In approximately 2006, she hired Respondent as a sales associate, and Respondent's license was listed as affiliated with Homefinders in September 2006. In early April 2007, Ms. Rabren received a call from Alvin Reynolds, the owner of some property Homefinders was managing at 3501 Kernan Boulevard, Number 234, in Jacksonville. Mr. Reynolds was calling to ask for his funds from the rental of the property. The property was apparently rented and funds received from the tenant for a security deposit and first month's rent on or about March 12, 2007. However, those funds, totaling $1,444.99, were not placed in the broker's trust account. Ms. Rabren confronted Respondent about the funds and was told that Respondent spent the money on personal bills. Respondent told Ms. Rabren that she would replace the money. On April 5, 2007, Respondent gave Ms. Rabren a check made out to Jacksonville Homefinders for $1,489.99. The check was from an account for Winter Property Maintenance, Respondent's husband's company. Ms. Rabren's husband deposited the check in Homefinder's escrow account. On April 6, 2007, the check was returned for insufficient funds. Ms. Rabren paid the property owner out of her personal funds. Respondent has not replaced the funds or delivered funds to the employer/broker for deposit into the escrow account.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Real Estate Commission enter a Final Order finding that Respondent has violated the provisions of Sections 475.25(1)(b), 475.25(1)(e), 475.25(1)(k), 475.42(1)(d), Florida Statutes (2006), and Florida Administrative Code Rule 63J2- 14.009, as alleged in the Administrative Complaint, and revoking Respondent's license as a real estate sales associate. DONE AND ENTERED this 20th day of October, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 20th day of October, 2010.
The Issue Whether Petitioner is qualified to take the examination for licensure as a real estate sales associate.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following Findings of Fact are made: The Petitioner is presently sixty-eight years of age. She first became licensed as a real estate sales associate in the State of Florida in 1982, and in December of 1988 she passed the examination for a broker's license. Shortly after she passed the examination for a broker's license, the Petitioner began setting up her own real estate brokerage firm. At that time the Petitioner had her sales associate license placed with a broker named Robert F. Armand & Associates. Her arrangement with Mr. Armand was that she would pay him a flat monthly fee of $250.00 in exchange for the services brokers usually provide for sales associates. The agreement provided that Mr. Armand would not receive any share of any commissions earned by the Petitioner. While the Petitioner was in the process of making arrangements to terminate her relationship with Mr. Armand and start her own brokerage firm, the Petitioner was successful in obtaining a contract for the sale of a residence ("the Molina transaction"). At that time the Petitioner still had her license placed with Mr. Armand's brokerage firm and had not yet begun operation of her own brokerage firm. Because Mr. Armand had become very upset when the Petitioner told him she would soon be leaving, the Petitioner did not want to have any further dealings with Mr. Armand that were not absolutely necessary, so she did not tell Mr. Armand about the Molina transaction. Rather, she held the Molina transaction and processed it through her own brokerage firm shortly thereafter. The Molina transaction closed in due course and there was no financial harm to either the buyer or the seller. There was no financial harm to Mr. Armand, because he was not entitled to share in any commission related to the Molina transaction. By some means not revealed in the record of this proceeding, the Respondent became aware of the manner in which the Petitioner had handled the Molina transaction and initiated disciplinary action against the Petitioner.1 The Petitioner decided to resolve the disciplinary proceedings by agreeing to surrender her licenses for revocation. Towards that end, on April 10, 1989, the Petitioner signed a document titled Affidavit for the Voluntary Surrender of License, Registration, Certificate/Permit for Revocation. That document included the following statements by the Petitioner: That my name is Addy Miller. That I am currently the holder of a real estate license/registration/certificate or permit issued pursuant to Chapter 475, Florida Statutes and the Rules of the Florida Real Estate Commission. That in lieu of further investigation and prosecution of the pending complaint(s) and case(s) received and filed with the Department of Professional Regulation, I do hereby consent to and authorize the Florida Real Estate Commission of the Department of Professional Regulation to issue a Final Order revoking any and all of the licenses, registrations, certificates and permits issued to or held by the undersigned. That the effective date of the revocation shall be April 10, 1989. All licenses, registrations, certificates and permits are hereby deemed surrendered and the undersigned hereby requests that the same be placed in and remain in inactive status pending final disposition by the Florida Real Estate Commission. That I will not apply for nor otherwise seek any real estate license, registration, certificate or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation. That I will not perform any act or service without first being the holder of a valid and current license, registration, certificate or permit thereof [sic] at the time the act or service is performed. That I waive any right to be noticed of any further administrative proceedings in this matter. That I waive any right to appeal or otherwise seek judicial review of the Final Order of revocation to be rendered in accordance with the provisions of this affidavit. [Emphasis added.] The above-quoted affidavit was considered at a meeting of the Florida Real Estate Commission on April 18, 1989. At that meeting the Commission issued a Final Order, the material parts of which read as follows: On April 18, 1989, the Florida Real Estate Commission heard this case to issue a Final Order. On April 10, 1989, the Respondent voluntarily surrendered her license and entered a written agreement that her license would be revoked. A copy of this agreement is attached hereto as Exhibit A and made a part hereof. Based upon this information and upon the information provided to the Florida Real Estate Commission at its meeting of April 18, 1989, the Commission ORDERS that the license of the Respondent be revoked, effective April 10, 1989. Prior to the incident that led to the 1989 order described immediately above, the Petitioner had never before had a complaint filed against her. Consistent with paragraph 8 of the affidavit quoted above, the Petitioner did not appeal the Final Order issued on April 18, 1989. The Petitioner has complied with all of the terms of the Final Order issued on April 18, 1989. The loss of the Petitioner's real estate license has adversely affected her ability to make a living and support herself. In recent years she has been working in sales and marketing with several different companies. She appears to be highly regarded by some of her employers. During the fifteen years since the revocation of her license, the Petitioner has lived a moral and honorable life and has not been involved in any matters that would cast doubt upon her good character and her reputation for fair dealing. During the fifteen years since the revocation of her license, the Petitioner has not been the subject of any criminal charges. The Petitioner acknowledges that her conduct related to the Molina transaction so many years ago was improper and is committed to avoiding any improper conduct in the future. Further, the Petitioner is sincerely embarrassed about her conduct in that matter and is remorseful regarding her actions in that regard. In view of the long lapse of time (more than fifteen years) since her misconduct related to the Molina transaction, and in view of her good conduct and reputation during that fifteen-year period, it is unlikely that the interests of the public and investors will be endangered by the granting of her application for relicensure. On or about March 19, 2004, the Petitioner filed an application to be relicensed as a sales associate. At a meeting on May 19, 2004, the Florida Real Estate Commission considered the Petitioner's application to be relicensed. Following such consideration the Commission voted to deny the application. The Commission's order denying the application gave the following reason for the denial: "After completely reviewing the record and being otherwise fully advised, the Board ORDERS that the application be DENIED based on the applicant's answer to the question regarding a professional license disciplined." Apparently, at the May 19, 2004, meeting the Commission was somewhat less than "fully advised," because at a Commission meeting on June 16, 2004, there was staff discussion of the fact that at the prior meeting "we did not have the information that you have today," and that at the prior meeting "we could not locate the old information." At the June 16, 2004, meeting staff confirmed that "[s]ince the May meeting we have found the old file. That's in your packet today." At the June 16, 2004, meeting, the Commission tabled further consideration of the Petitioner's application because the Petitioner was sick and could not attend that meeting. The Petitioner's application for relicensure was reconsidered at a Commission meeting on July 21, 2004. During that meeting there was some discussion of the Petitioner's background. During the course of that discussion the Petitioner agreed with the observation of one of the Commissioners that during the past fifteen years she had "been absolutely squeaky clean." During the course of the meeting, without any statement of the reason for doing so, one of the Commissioners moved to deny the application, another seconded the motion, and without any further discussion the Petitioner's application was denied by a vote of five to one. Following the July 21, 2004, Commission meeting, the Commission issued a written order again denying the Petitioner's application to be relicensed. The written order contained the following reason for the denial: "After completely reviewing the record and being otherwise fully advised, the Board ORDERS that the application be DENIED based on the applicant's answer to the question regarding the discipline of a professional license." The question on the application regarding any prior discipline of a license called for a "yes" or "no" answer. The Petitioner truthfully checked the "yes" box. Instructions on the application form asked those who checked the "yes" box to also: . . . please provide the full details of any . . . administrative action including the nature of any charges, dates, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which any proceedings were held . . . and the designation and/or license number for any actions against a license or licensure application. The Petitioner complied with this request by including as part of her application a typed statement and a handwritten statement which, respectively, read as follows, in pertinent part: THE TYPED STATEMENT I held real estate licenses from 1982-1989. I voluntarily surrendered my license to the Department in 1989. I was not involved in any litigation, with the DPR or the courts, and there was no payment made from the Recovery Fund. However, my license was suspended for ten years that was fulfilled in April, 1999. The Department informed me that once I had served my suspension term, I would be able to start again with the salesman's classroom requirements and apply for and pass the state examination as I am presently doing with the Gold Coast School of Real Estate. If you require additional information, please do not hesitate to contact me. THE HANDWRITTEN STATEMENT I voluntarily surrendered my license in April 1989. I held on to escrow money for a longer period of time than the law allows. The transaction was successfully closed and it was to be my last. My suspension was for a maximum of ten years that was satisfied in 1999. There was no other consequence other than my ability to practice real estate for ten years. The answers quoted above appear to be truthful and candid answers consistent with the requirements of the instructions on the application form. The details in the answers provide some enlightenment regarding the basis for the Commission's disciplinary action against the Petitioner in 1989, but those details, standing alone, do not provide any enlightment regarding the basis for the Commission's vote to deny the pending application for relicensure. It appears that since the revocation of her real estate license in 1989, the Petitioner has rehabilitated herself and that therefore it is not likely that her relicensure would endanger the public.2
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that the Petitioner is qualified to practice as a real estate sales associate, subject to passing the licensure examination. DONE AND ENTERED this 23rd day of February, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2005.
Findings Of Fact Respondent Sexsmith is a licensed real estate broker, having held License Number 0079448 at all times relevant to these proceedings. Respondent Bellitto is a licensed real estate salesman, having held License No. 0204206 at all times relevant to Case No. 81-2630. Respondent Select Realty, Inc., is a licensed corporate real estate broker, having held License No. 0157174 at all times relevant to these proceedings. Respondent Sexsmith founded Select Realty, Inc., in 1975. He was a full time realtor until his employment by the Hollywood Fire Department in 1976. Select Realty thereafter became inactive. In 1979, Respondent Sexsmith was contacted by a Mr. Jim Holmes, who was seeking to register the corporate name, Select Realty. Sexsmith agreed to permit the name Select Realty to be used by Holmes and his associates to open a real estate office at 3045 North Federal Highway, Fort Lauderdale. Sexsmith also applied to Petitioner for certification as a director and active broker with this company. His application was granted in June, 1979, and he remained affiliated with Respondent Select Realty, Inc., in this capacity until about April, 1980. Respondent Sexsmith did not participate in Select Realty operations and received no compensation for the use of his name and broker's license. He was slated to open and manage a branch office in Hollywood, but this project failed to materialize. Petitioner produced Mr. Tom Ott and Ms. Terri Casson as witnesses. They had utilized the services of Select Realty, Inc., in December, 1979 (Ott) and February, 1980 (Casson). Both had responded to advertisements in which Select Realty offered to provide rental assistance for a $45 refundable fee. These witnesses understood money would be refunded if Select Realty did not succeed in referring them to rental property which met their specifications. Mr. Ott was referred to several properties which did not meet his requirements. He sought to have his fee or a portion thereof returned, but was refused. His demand for such return was made within the 30-day contract period (PX-11). Ms. Casson was similarly dissatisfied with the referrals and sought the return of her fee within the 30-day contract period (PX-7). However, she was unable to contact this company or its agents since the office had closed and no forwarding instructions were posted or otherwise made available to her.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent Select Realty, Inc., and Gary Lee Sexsmith be found guilty as charged in Counts Three and Four of the Administrative Complaint filed in DOAH Case No. 81-2630. It is further RECOMMENDED that all other charges against these Respondents and other Respondents named in DOAH Cases 81-2630 and 81-2490 be dismissed. It is further RECOMMENDED that the corporate broker's license of Select Realty, Inc., be revoked. It is further RECOMMENDED that the broker's license of Gary Lee Sexsmith be suspended for a period of one year. 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. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101, Kristin Building 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 William Grossbard, Esquire Suite 6175M 6191 Southwest 45 Street 6177 North Davie, Florida 33314 Anthony S. Paetro, Esquire Bedzow and Korn, P.A. Suite C 1125 Northeast 125 Street North Miami, Florida 33161 Lawrence J. Spiegel, Esquire Spiegel and Abramowitz Suite 380 First National Bank Building 900 West 49th Street Hialeah, Florida 33012 Mr. Gary Lee Sexsmith 321 Southwest 70t Avenue Pembroke Pines, Florida 33023 Mr. Guiseppe D. Bellitto 2635 McKinley Street Hollywood, Florida 33020 Select Realty, Inc. c/o Mr. Gary Lee Sexsmith last acting Director and Trustee of Select Realty, Inc. 321 Southwest 70th Avenue Pembroke Pines, Florida 33023 Mr. Carlos B. Stafford Executive Director Board of Real Estate 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.
The Issue The issue in this case is whether the Respondent, Joseph E. Stalls, Jr., committed the violations alleged in an Administrative Complaint issued by the Petitioner, Department of Business and Professional Regulation, Division of Real Estate, on July 19, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Real Estate (hereinafter referred to as the "Department"), is the state agency charged the duty to prosecute administrative complaints pursuant to Section 20.125, and Chapters 120, 455, and 475, Florida Statutes (2000). At the times material to this proceeding, Joseph E. Stalls, Jr., was a licensed Florida real estate salesperson. Mr. Stalls license number is 0125262. For his last issued license, Mr. Stalls was an active salesperson c/o Jim See Realty, Inc., located at 206 North 6th Avenue, Wauchula, Florida 33873. Prior to 1999, Mr. Stalls was actively engaged in growing, harvesting, and selling citrus. Mr. Stalls engaged in this business through a corporation, Stalls Fruit Co., Inc. (hereinafter referred to as "Stalls Fruit"). Mr. Stalls owned half of the stock of Stalls Fruit and was its president. Stalls Fruit elected coverage for its workers' compensation insurance through the Florida Fruit & Vegetable Association Self-Insurers' Fund (hereinafter referred to as the "Fund"). On or about August 21, 1998, an Information was issued in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida, charging Mr. Stalls with engaging in a scheme to defraud the Fund "to-wit: workers' compensation coverage from Florida Fruit & Vegetable Association Self- Insurer's Fund pursuant to policy number 840-8844-01, as valued by the diminution in premium payments resulting from said fraud or fraudulent pretenses or representations, with an aggregate value of $50,000 or more, in violation of Florida Statute 817.034(4)(a)." On or about February 17, 1999, Mr. Stalls pled guilty to the charge of the Information, which constitutes a felony. The court, upon the entry of Mr. Stalls' plea, withheld adjudication, ordered Mr. Stalls to serve one day in the Orange County Jail, with credit for a day already served, placed Mr. Stalls on Community Control for one year, followed by ten years of supervised probation, ordered Mr. Stalls to perform 500 hours of community service within a three-year period, and ordered that he make restitution in the amount of $738,566.00. The requirement that Mr. Stalls make restitution has placed an extreme financial hardship on him. Mr. Stalls, unaware that he was required to inform the Florida Real Estate Commission of his plea, and based upon his incorrect understanding of the consequences of adjudication being withheld, failed to report these events to the Florida Real Estate Commission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered finding that Joseph E. Stalls, Jr., violated Section 475.25(1)(f) and (p), Florida Statutes (1999), and that his salesperson license be revoked. DONE AND ENTERED this 20th day of May, 2002, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 2002. COPIES FURNISHED: Donna K. Ryan, Esquire Department of Business and Professional Regulation Division of Real Estate Hurston North Tower 400 West Robinson Street, Suite N308 Orlando, Florida 32801-1772 Joseph E. Stalls, Jr. 1165 36th Avenue Vero Beach, Florida 32960 Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-22202
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 Petitioner is a state governmental licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints filed pursuant to the laws of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes and the rules promulgated pursuant thereto. (Official recognition taken of Section 20.30, Chapters 120, 455, and 475, Florida Statutes). Respondent is now, and was at all times material hereto, a licensed real estate salesman in Florida having been issued license No. 0199126 in accordance with Chapter 475, Florida Statutes. The last license issued Respondent was as a non-active salesman with a home address of 6312 Balboa Lane, Apollo Beach, Florida 33570. During times material, Respondent was the owner and sole stockholder of Computer Real Estate Sales, Inc. During times material, Respondent was a licensed real estate salesman in association with Computer Real Estate Sales, Inc. located at 600 West Jefferson Street, Brooksville, Florida 33512. During early March, 1986, Respondent caused to be ordered a termite treatment to be performed in March, 1986 on property owned by Richard E. Atkinson (Atkinson) located at 21476 Chadfield Street in Brooksville. The subject property treated for termites was being managed by Respondent through his company, Computer Real Estate, Inc. Respondent was previously the owner of that property as well as four other rental properties that he sold to Atkinson. Respondent caused the property management account of Atkinson to be debited by the sum of $380.00 to pay for the termite treatment performed by Bray's Pest Control (Bray's). (Petitioner's Exhibit 3). Respondent failed to pay the $380.00 to Bray's for the termite treatment nor did he later credit Atkinson's property management account when he failed to pay Bray's for the termite treatment. To collect payment for the termite treatment, Bray's was forced to file a civil complaint against Respondent in county court, Hernando County. On February 25, 1987, a final judgment was entered against Respondent in the amount of $391.40 plus costs of $36.00 and interest computed at the rate of 12% from March, 1986 until paid. (Petitioner's Exhibits 4 and 5). Subsequent to entry of the judgment and despite Bray's efforts to collect the award, Respondent failed and refused to satisfy the final judgment until an initial payment was made on March 5, 1989 and the balance due was paid on July 13, 1989. Respondent's contention at hearing that he was simply stockholder and not liable for the obligations of Computer Real Estate Sales, Inc., was rejected based on a review of pleadings filed which indicated that he was sole stockholder during times material and that several contractors relied upon his representation, as owner of Computer Real Estate Services, Inc., to make payments for debts and obligations incurred by that company.
Recommendation Based on the foregoing findings of fact and conclusion of law, it is RECOMMENDED: The Petitioner enter a final order imposing an administrative fine against Respondent in the amount of $1,000.00 payable to the Florida Real Estate Commission within 30 days of the entry of the final order herein or Respondent's real estate license shall be revoked. In the event that Respondent pays the above referred $1,000.00 fine to Petitioner within 30 days of entry of the final order herein, Respondent's real estate license No. 019916 be placed on probation for a period of (1) one year. 2/ DONE and ENTERED this 5th day of December, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1989.
