Findings Of Fact The Petitioner is an agency of the State of Florida responsible for licensing and regulating real estate salesmen in the State of Florida. The Respondent, George Chaconas, at all times pertinent hereto, was, and still is, the holder of a Florida real estate salesman license, number 0402455. The Respondent was convicted on February 2, 1988, of conspiracy to distribute cocaine, a felony. The Respondent was convicted in United States District Court, District of Baltimore. On April 15, 1988, the Respondent was sentenced to fifteen years imprisonment. The Respondent is presently serving his sentence in the Federal Correctional Institute located in Tallahassee, Florida. By letter dated February 29, 1988, from the Respondent's counsel, the Petitioner was informed of the Respondent's conviction. The Respondent's conviction is currently on appeal. Mitigating circumstances in this case include the following: (1) the evidence failed to prove that the Respondent's violations harmed real estate consumers or the real estate public; (2) there are two counts in the Administrative Complaint; (3) this is the first time the offense has been committed; (4) no disciplinary action has been taken against the Respondent in the past; (5) the Respondent was not on probation or under suspension at the time the violations occurred; (6) the real state business will be the Respondent's only source of income when he is released from incarceration; and (7) the Respondent has not received a letter of guidance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent's license as a real estate salesman by revoked; provided, that if the Respondent's conviction is reversed on appeal, his license as real estate sales can be reinstated. DONE and ENTERED this 29th day of August, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 August, 1989. COPIES FURNISHED: Arthur R. Shell, Jr. Senior Attorney Department of Professional Regulation Division of Real Estate Legal Section Post Office Box 1900 Orlando, Florida 32802 George Chaconas Federal Correctional Institute Capital Circle #07593-018, PMB 1000 Unit B/X Tallahassee, Florida 32301 Kenneth Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32390-0729 Darlene F. Keller Division Director Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando Florida 32802
The Issue Whether the Petitioner meets the qualifications for licensure pursuant to Chapter 475, Florida Statutes.
Findings Of Fact On April 2, 1987, in Pinellas County, Florida, the Petitioner entered a nolo contendere plea to a charge of exposure of sexual organs, a violation of Section 800.03, Florida Statutes. On or about August 17, 1987, the Petitioner filed an application for licensure as a real estate salesman. In response to a question involving prior criminal violations, the Petitioner informed the Respondent of the past violation and his nolo contendere plea. On January 5, 1988, through its legal advisor, the Respondent notified the Petitioner that his application for a real estate license was denied because of the nolo contendere plea to the indecent exposure charge. The Petitioner requested a formal administrative hearing. During the administrative hearing, the Petitioner testified that on the date of the alleged criminal violation, he stopped on his way to shopping mall to relieve himself in a public restroom located in Freedom Lake Park. While in the restroom, he was approached by a man who strongly implied he wanted to see the Petitioner's sexual organs. At first, the Petitioner did not respond to the request. He then told the man "no" and went to use the urinal. The other man identified himself as a police officer and placed the Petitioner under arrest for exposure of sexual organs. Once charged with the offense, the Petitioner had to decide whether to contest the charge by requesting a trial or to enter into a plea bargain agreement. The Petitioner was a high school guidance counselor at the time of the arrest. Because of his employment, he was concerned about the notoriety a trial involving sexual misconduct would bring and its damage to his career. He was also concerned about the effects of a trial upon him and his family. The terms of the plea agreement were that if he were to enter a nolo contendere plea, adjudication of guilt would be withheld by the court. He would be fined $150.00, required to seek counseling, and be placed on six months of supervised probation. Upon advice of counsel, the Petitioner chose to enter the plea, and accept the plea bargain agreement.
Findings Of Fact On May 3, 1982, Petitioner applied to Respondent for licensure as a real estate salesman. Question No. 6 on the application filed by Petitioner read as follows: Have you ever been arrested for, or charged with the commission of an offense against the laws of any municipality, state or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the outcome in full. In response to this question, Petitioner answered as follows: Yes--Please see attached letter. [sic] class C felony. I was put on probation for 2 yrs and paid restitution[sic] this occurred in May of 1978. The letter attached to Petitioner's application read, in part, as follows: On May 24, 1978, I was convicted of burglary, a class C Felony, in Circuit Court, Oneida County, Wisconsin. My sentence was withheld and I was placed on probation for two years. The court ordered that I also pay $9 court cost and restitution to the victim. The record in this cause establishes that on February 13, 1978, Petitioner was arrested in Oneida County, Wisconsin, and charged with feloniously entering a building with intent to steal, a felony punishable under Wisconsin law by imprisonment for up to ten years. On May 24, 1978, Petitioner pleaded guilty to the charge of burglary stemming from her arrest. Petitioner was found guilty of burglary, but adjudication was withheld, and she was placed on probation for two years and ordered to make restitution to the victim of her crime. Subsequently, Petitioner made restitution in the amount of $137.45. In addition, she successfully completed her two-year period of probation, and was terminated from probationary status on May 24, 1980, and her civil rights were restored. Subsequent to her arrest and conviction, both during her probationary period and thereafter, Petitioner has diligently pursued employment in a variety of fields in both Wisconsin and in Florida. While on probation in Wisconsin, Petitioner was employed in a mental health center where her duties included working as a receptionist-secretary, receiving clients, receiving telephone calls, setting up appointments for clients, taking care of bill payments, receiving money on behalf of the center, and maintaining confidentiality of client files. Her employers at the mental health center were aware of her arrest and conviction, and closely evaluated Petitioner prior to hiring her, including administering the Minnesota Multiphasic Personality Inventory to determine whether she should be employed. She not only was employed after this analysis, but performed in a highly commendable fashion during the one-year period in which she held this position. Subsequently, Petitioner has worked as a waitress in various restaurants in Wisconsin, and has served as co-manager of a mobile home park in Florida. In the latter position, it was her responsibility for the general upkeep of the park, and to collect rentals and forward them to the park owner. At the time of final hearing, Petitioner was working as a salaried employee of a time-sharing resort development. In this position, she acts as a tour guide and salesperson, and receives deposits from purchasers and remits them to her employer. Petitioner's testimony and demeanor during the course of the final hearing was that of a mature and responsible wife and mother who feels genuine shame and contrition for the mistake which led to her criminal conviction. Her personal history since the date of the offense demonstrates that she has assumed responsibility for her behavior, and has determined to function effectively as a productive member of society. Accordingly, the record in this cause clearly establishes that because of the lapse of time since her conviction and her subsequent good conduct, that the interests of the public and investors would not likely be endangered by allowing her to become registered as a real estate salesperson.
Findings Of Fact Joseph Pine is a registered real estate salesman holding license certificate number 0131432 and was so registered on December 6, 1976. Joseph Pine entered a plea of guilty to the possession of a controlled substance, cannabis, over five (5) grams. The court withheld adjudication and placed Pine on supervised probation for three (3) years because Pine was living in Quba, Netherlands Antilles. The possession of a controlled substance, cannabis, is a violation of Section 893.13(1)(a)2., Florida Statutes. This is a felony of the third degree.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the case be dismissed and no action be taken. DONE and ORDERED this 7th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1977. COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Harry L. Garber, Esquire Garber & Buoniconti, P.A. 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130
Findings Of Fact During times material to the allegations of the administrative complaints filed herein, the Respondents were registered real estate salesmen in the employ of Theodore Dorwin, a registered real estate broker, and at all times material herein, Darwin was the active firm member broker for Intermart, Inc. Raymond Lewis, a salesman employed by Dorwin during the period December, 1975 through mid February, 1976, as a real estate salesman, was initially employed by Florida Landowners Service Bureau. During mid February, 1976, he testified that the name Florida Landowners Service Bureau was changed to Intermart, Inc., and that approximately during this period, he left the employ of Intermart, Inc. He testified that the offices were situated on northwest 79th Street, which consisted of a large room containing six cubicles where salesmen manned the telephones in the cubicles during the hours of approximately 6:00PM through 10:30PM during week days and during the early afternoon and evening hours on weekends. Salesmen were given lead cards which were apparently compiled from the county tax rolls from which a list was given containing out of state landowners. Employees, based on a "pitch" card called out of state land owners to determine their interest in selling their property. He described the procedure as a "front" when an out of state landowner was called to determine interest in selling their land. The "close" procedure was a method whereby those property owners who had displayed some interest in selling their properties were mailed a packet of materials which, among other things, contained a listing agreement. Salespersons were compensated approximately $100 to $125 for each listing secured by an executed listing agreement which in most instances represented approximately one third of the listing fee. During the course of a normal day, salesmen would contact approximately thirty landowners and they would be given estimates of the prospective selling price of their land based on the location of the property and the length of time that the owner had held it. The testimony of Lewis, which is representative of that given by later witnesses including Jeffrey Barker, August Graser, David Cotton and Henry Halar (all salesmen employed by Dorwin) reveals that property owners were called to determine their interest and if interest was noted, follow-up calls would be made after a packet of materials was sent to interested landowners. After a listing arrangement was obtained, salesmen were compensated by payment of an amount representing approximately one-third of the listing fee. In the case of a listing fee obtained by two or more salespersons, the fee (commission) was divided according to the number of salespersons instrumental in obtaining the listing. Each salesman who testified indicated that they made no guarantee that a sale would be consummated within a definite period nor were they familiar, in any particulars, with the brokerage efforts to sell the properties of owners who listed their property with Intermart. Theodore Dorwin, the active firm member broker for Intermart, Inc., was subpoenaed and testified that he had no copies of the records which were subpoenaed showing the operations of Intermart, Inc. In this regard, Raymond Lewis also testified that he had no corporate records respecting Intermart. Both witnesses testified that all corporate records of Intermart had been subpoenaed and were in the custody of the Attorney General for more than one year. Dorwin refused to give any testimony respecting the operational workings of Intermart, Inc., based on fifth amendment self incrimination grounds. The Commission's counsel took the position during the course of the hearing that Mr. Dorwin had waived any and all fifth amendment rights or privileges by virtue of having personally testified in a similar matter before the Florida Real Estate Commission in a proceeding undertaken to revoke or suspend his license as a real estate broker. Having voluntarily taken the stand in that proceeding, the Commission concludes that he is not now entitled to any fifth amendment protections. As evidence of Mr. Dorwin's having voluntarily taken the stand in the prior proceeding, excerpts of the testimony from that proceeding was introduced into evidence. (See FREC Exhibit number 8). Having considered the legal authorities and the arguments of counsel, the undersigned is of the opinion that testimony given by a party in a separate proceeding to which the Respondents were not party to and of which the Respondents had no notice of cannot serve in lieu of evidence on which findings of fact can be based to substantiate allegations pending in the instant case. To do so, would possibly leave open the door for highly prejudicial and damaging testimony to which the Respondents here had no opportunity to rebut, cross examine or otherwise explain, all of which is inherently destructive of their basic rights, fairness and fundamental due process. The cases of Hargis v. FREC 174 So.2d 419 and Vann, 85 So.2d 133 are not deemed inapposite to the conclusion reached here. The fact that the State's Attorney General is currently conducting an investigation into the operations of Intermart makes clear that the possibility of criminal action or other sanctions exist (e.g. tax problems). For these reasons, I conclude that Dorwin's testimony in a prior proceeding, amounts to no waiver of his constitutional privilege. For these reasons, exhibit number 8 will not be considered as evidence herein. Having so concluded, the record is barren of any evidence, hearsay or otherwise, which would tend to establish in a competent and substantial manner, that the Respondents herein had engaged in conduct alleged as violative of Chapter 475.25, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the administrative complaints filed herein be dismissed in their entirety. RECOMMENDED this 18th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether Respondents, individually or collectively, constitute an employer as defined in Section 760.02(7), Florida Statutes (2005), for purposes of conferring jurisdiction on the Florida Commission on Human Relations (FCHR) to consider the Employment Charge of Discrimination filed by Petitioner against Respondents.
Findings Of Fact Petitioner is a licensed real estate agent. Sometime in 1999, Petitioner began working in Panama City, Florida, for Florida Media Group, Inc. Mr. Pace and Edward Hines own Florida Media Group, Inc., a full-service marketing company that is located in Tallahassee, Florida. Mr. Pace hired Petitioner to promote the real estate sales in Bay County, Florida, of Palm Cove, a land development company. Petitioner received a United States Internal Revenue Service (IRS) Form 1099 from Florida Media Group, Inc. in 2001. From 2002 through April 2004, Petitioner worked directly for Palm Cove selling real estate in Palm Cove’s single-family housing subdivision in Bay County, Florida. Mr. Pace owns 25 percent of Palm Cove. The other three owners are Gary Wakstein, Hubert Green, and Edward Hines. Petitioner received an IRS Form 1099 in 2002, 2003, and 2004 from Palm Cove for commissions she earned by selling real estate for the developer. On or about April 27, 2004, Palm Group Realty was incorporated. Palm Group Realty is owned by Ms. Reed, Mr. Pace, Mr. Hines, Mr. Green, and Mr. Wakstein. In September 2004, Ms. Reed became the designated real estate broker for Palm Group Realty. Petitioner began working for Palm Group Realty soon after it was incorporated. She worked for the real estate agency until September 30, 2004. Petitioner received an IRS Form 1099 from Palm Group Realty in 2004 based on her commissions. Some of the commissions must not have been paid until 2005 because Palm Group Realty provided Petitioner with an IRS Form 1099 in 2005. The relevant time period here is November 1, 2003, through September 30, 2004. Regarding that time period, Petitioner sold real estate for Palm Cove from November 1, 2003, through April 27, 2004, and for Palm Group Realty from April 27, 2004, through September 30, 2004. Palm Cove and Palm Group Realty have the same address and overlapping but not precisely the same ownership. However, there is no evidence that Palm Cove, as the land developer, and Palm Group Realty, as the real estate agency, had overlapping operations after Palm Group Realty was incorporated. Since April 2004, Palm Cove’s business has been limited to land development and home construction on a contracting basis. Palm Group Realty’s business is limited to real estate transactions. There is no evidence that Palm Cove has ever had employees who received a salary and IRS Form W-2. Palm Cove has provided two real estate agents, one of which was Petitioner, with an IRS Form 1099. During the relevant time period, Palm Group Realty had four employees who received an IRS Form W-2: Rachel Housler, Brandi Long, Beverly Wakstein, and Katherine Wilson. Palm Group Realty provided three people with IRS Form 1099: Andrew Sullivan, Harriette Reed, and Petitioner. Palm Group Realty provided the following people with an IRS Forms 1099 and W-2: Jon-Aric Long, Martha Osborne, and David Oswalt. Apparently Florida Media Group, Inc., continues to handle some of the marketing aspects of the land development project for Palm Cove. At the most, Florida Media Group, Inc., has three employees. Management Information Systems (MIS) is a bookkeeping company with approximately 20 independent clients, including Palm Cove and Palm Group Realty. There is no competent evidence regarding the ownership or the number of employees of MIS. The most credible evidence indicates that operations of MIS are separate and distinct from Palm Group Realty and Palm Cove. Palm Group Realty, Palm Cove, and Florida Media Group, Inc., had a total of 14 salaried employees and/or independent contactors receiving commissions during the relevant period. It is impossible to determine from the record whether all 14 persons were working for one of the companies at the same time. Mr. Pace and Ms. Reed testified that they personally did not have any employees during the relevant time period. Petitioner did not present any persuasive evidence to dispute their testimony. The companies referenced here did not have overlapping/integrated operations such that they could be considered a solitary employer. Petitioner’s testimony to the contrary is not credible, as it is, for the most part, based on hearsay or uncorroborated by properly authenticated documentary evidence, which would constitute the best evidence of the contested facts.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That FCHR enter a final order finding that it is without jurisdiction to proceed in these cases based upon Petitioner's failure to show that Respondents constitute "an employer" as defined in Section 760.02(7), Florida Statutes. DONE AND ENTERED this 29th day of December, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 29th day of December, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Harriette Reed Palm Group Realty, LLC 11812 Cabana Court Panama City, Florida 32407 B. R. Hutto, Esquire Post Office Box 2528 620 McKenzie Avenue Panama City, Florida 32402-2528 Kathryn Whaley 3509 Brooke Lane Panama City, Florida 32404
The Issue Whether the petitioner meets the qualifications for licensure as a real estate salesman.
Findings Of Fact On July 6, 1984, the petitioner filed an application for licensure as a real estate salesman with the Department of Professional Regulations Division of Real Estate. The petitioner responded in the affirmative to question 6, which asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere. . .", and set forth the details as follows: "Attempted Possession of Stolen Property" (New York) Bronx Date of Probation May 29, 1984 Date of Conviction November 16, 1983 Probation Officer Ms. English 212-590-3101 By letter dated September 24, 1984, and undated letter filed October 31, 1984, the petitioner was informed that the Commission had denied his application for licensure. In pertinent part the letter stated as follows. "The power of the Commission to review and deny applications is based upon Sections 475.17 and 475.25, Florida Statutes. Subsection 475.17(1) calls for the applicant to be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. . ." The reason for the Commission's action is based on your answer to Question(s) 6 of the licensing application and/or your criminal record according to the appropriate law enforcement agency. The petitioner owned a secondhand jewelry business in New York, similar to a pawn shop. He dealt with people all over the world, mainly wealthy people, and they sold him antiques and jewelry. He informed anyone coming in his store that he did not buy stolen goods and had a sign on his wall so stating. One gentleman, that had been a client for approximately three years, came into the store about every six or seven months to sell something. The last time this individual came into the store, about four weeks before the petitioner closed his business and moved to Florida, the individual implied that the gold he was selling might not belong to him. However, petitioner wasn't paying particular attention at that time to what the individual was saying since the petitioner had had previous dealings with him. After moving to Florida, in February of 1983, Petitioner was notified that he had been indicted in Bronx, New York. He flew back to New York and turned himself into the authorities. He discovered that the gentleman with whom he had been dealing for three years was a New York police officer and that their conversations had been taped. The tape revealed that during the last transaction the officer had implied that the gold he was selling did not belong to him. Petitioner pleaded guilty to attempted possession of stolen property, a felony, and was placed on probation for five years beginning in December, 1983. Petitioner has had a very good record while on probation. The petitioner held a real estate license in New York for over 10 years which has now expired. The license was never suspended or revoked and petitioner never had any other type of problem while in the real estate business. Since petitioner has been in Florida he has held responsible jobs handling large amounts of money. His employers, friends and coworkers have been impressed with his reliability, integrity and honesty. Petitioner presented sufficient evidence to show that since living in Florida he has been honest, truthful, trustworthy, of good character, and has a good reputation for fair dealing. Nevertheless, respondent pleaded guilty to the crime of attempted possession of stolen property and is still on probation for that crime. Although an isolated unlawful act or criminal conviction in the past does not necessarily mean that an individual is presently dishonest, untrustworthy or of bad character, 1/ it must be concluded that when an individual is presently on probation for a crime involving dishonest dealing, the unlawful act or conviction is not so remote that it can be deemed an isolated incident in the past. Because Petitioner is still on probation for a crime that involves dishonesty and a lack of trustworthiness, petitioner has not established that he meets the requirements of Section 474.17(1)(a), Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that petitioner's application for licensure be DENIED. DONE and ENTERED this 12th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 12th day of December, 1985.
