The Issue Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent is and, at all times material hereto, was a duly licensed real estate salesperson in the State of Florida. Respondent is now and was at all times material herein actively engaged in major real estate developments and has also operated on behalf of family owned corporations. During the relevant time period, Respondent has not engaged in the general real estate brokerage business. On August 16, 1984, Respondent was found guilty in federal court of one count of knowingly, willfully, and unlawfully participating in the use of extortionate means to collect and attempt to collect an extension of credit in violation of Title 18, United States Code, Section 894. Respondent was sentenced to 18 months in prison and fined $2,000. The incident which gave rise to the conviction occurred in and while the Respondent was a resident of Illinois, and prior to the Respondent's being issued his Florida real estate license. Respondent testified that in 1983 he owned a Chicago nightclub. According to Respondent, during that time period someone owed Respondent a gambling debt in the amount of $36,000. The person who owed the money to Respondent said he would pay the debt. Because the Respondent was leaving town, he asked his wife's uncle to pick up the money. The Respondent indicated, that unknown to him, the uncle used unlawful means in an attempt to collect the funds. It was this collection effort which eventually lead to the Respondent's arrest, not guilty plea, and guilty verdict in 1984. The Respondent moved to Florida and, subsequently, on or about January 19, 1994, he applied to become licensed as a Florida real estate salesperson. The application contained an affidavit which provided in part that "such responses are true and correct, and are as complete as his/her knowledge, information and records permit without any evasions or mental reservations whatsoever." Petitioner's application form contained Question 9 which requested information concerning an applicant's criminal history. In pertinent part the question is as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to 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. * * * Your answer to this 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. In response to this question, Respondent answered in the negative by marking the "no" box. On April 18, 1994, the State of Florida issued Respondent license #0611142 as a real estate salesperson. On January 10, 1994, Respondent signed the application. By his duly notarized signature, the Respondent swore that all answers and information provided on his application were true, correct, and complete. On or about January 16, 1995, Respondent applied to become licensed as a real estate broker in the State of Florida. Respondent, again, checked "no" to Question 9 on his broker's application as to whether or not he had ever been convicted or found guilty of any crime. Also, Respondent again swore that all answers and information contained in his application to become a real estate broker in the State of Florida were true, correct, and complete. Again, the Respondent's signature was duly notarized. The broker's application was approved for the Petitioner. However, a broker's license was not issued because Respondent failed to pass the state examination required to be licensed as a broker. Respondent testified at the formal hearing that the reason he did not disclose his prior conviction on his real estate applications was that he had spoken to his brother who advised him that matters over 10 years old did not have to be disclosed. Respondent did not consult with an attorney, the Division of Real Estate or anyone else other than his brother about how to answer Question 9 on his real estate application. Respondent's stated justification for checking "no" on his license applications lacked credibility given the clear wording of Question 9 on the application form. The Respondent has had no other incidents of criminal problems. Similarly, there have been no civil judgments involving the Respondent and dishonest dealing. Finally, there have been no prior disciplinary matters against the Respondent. The Respondent has served in the military and was honorably discharged and earned a two-year degree in electronics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 * day of February, 1998. *Filed with the Clerk undated. -ac COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 July 21, 1999 Henry M. Solares, Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis DOAH Case No. 97-3722 Dear Mr. Solares: Enclosed is the Amended Recommended Order issued in the referenced case. It was issued in order to correct a scrivenners error in page 8 of the original order. Please replace page 1 and page 8 enclosing for pages 1 and 8 oriignally sent to you. Please accept my apologies for any inconvenience this might have caused. Sincerely, CSH/scl Enclosures cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire CAROLYN S. HOLIFIELD Administrative Law Judge
Findings Of Fact The Respondent is a licensed real estate broker and salesman. In proceedings on January 9, 1981, in the Circuit Court, 17th Judicial Circuit in Case No. 80-8846 CF, and in the absence of the Respondent, Respondent's Counsel first indicated to the judge that he was entering a plea of no contest for the Respondent but changed that plea to one of guilty of misdemeanor trespass (Section 810.08) on the basis of the entry of an adjudication withheld. The court noted the Respondent's authorization of his Counsel to enter the plea. The court withheld adjudication and placed the Respondent on probation for six months, and assessed as a special condition of the probation $150 in court costs and restitution in the amount of $100.
Recommendation The Board has not demonstrated a violation of Section 475.25(1)(f), Florida Statutes, by the Respondent. Therefore, the charges should be dismissed, and no disciplinary action should be taken against Respondent based upon the allegations contained in the Administrative Complaint. DONE and ORDERED this day 4th of June, 1982, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 4th day of June, 1982. COPIES FURNISHED: Robert F. Jordan, Esquire Post Office Box 14723 Fort Lauderdale, Florida 33302 James Curran, Esquire 200 South East Sixth Street, Suite 301 Fort Lauderdale, Florida 33301 C. B. Stafford, Executive Director Board of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Samuel Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Department is the agency charged with the licensing and regulation of real estate salesmen and brokers. At all times material to these proceedings, Respondent Peebles was a licensed real estate broker in Florida, having been issued license number 0396895. The last license issued was placed at 2690 52nd Street North, St. Petersburg, Florida. The home address listed with the Florida Real Estate Commission was Post Office Box 40063, St. Petersburg, Florida. On April 7, 1987, the Respondent entered a plea of guilty to the crime of credit card fraud in the United States District Court Middle District of Florida, Case No. 86-215 Cr- Orl-19. The crime was a felony in that the alleged acts involved the unauthorized use of access devices (credit cards) to obtain items of value aggregating $1,000 or more in a one-year period. The case was in federal court because the offense affected interstate and foreign commerce. The crime did not involve any business dealings in which the Respondent was acting as a real estate salesman or broker. However, the crime did involve fraudulent or dishonest dealings. Upon acceptance of the Respondent's plea, the court adjudicated the Respondent guilty and sentenced him to three years of imprisonment at Maxwell Air Force Base in a minimum security federal prison. In addition, the Respondent was ordered to make restitution of $60,590.00, and pay court costs. The sentencing occurred on April 7, 1987. A timely appeal from the judgment and sentence was not taken by the Respondent. The Respondent did not notify the Department of his guilty plea and subsequent conviction within the thirty-day period required by Section 475.25(1)(p), Florida Statutes. A Motion for New Trial based upon the ground of newly discovered evidence, was filed by the Respondent in the criminal case on March 1, 1990. The United States District Court, Middle District of Florida, has not ruled on the motion. Mitigation The Respondent does not currently have the financial ability to pay any fines if that penalty were to be imposed upon him in this case. The Respondent failed to notify the Florida Real Estate Commission of his conviction because he was under extreme stress when the conviction occurred and he was incarcerated.
Recommendation Based upon the findings of fact, conclusions of law, and the mitigation presented by the Respondent, it is RECOMMENDED: That the Respondent be found guilty of the allegations in Counts I through IV, which were proved at hearing. That the Respondent's real estate broker's license be revoked for seven years. DONE and ENTERED this 9th day of July, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0224 The Department's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2. Accepted. See HO #2. Accepted. See HO #3, #4 and #5. Accepted. See HO #5. Rejected. See HO #9. Accepted. See HO #7. Rejected. Irrelevant. COPIES FURNISHED: James H. Gillis, Esquire DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 Robert J. Peeples Post Office Box 40063 St. Petersburg, Florida 33743 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Darlene F. Keller, Executive Director DPR - Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact By an application received by the Board on March 21, 1979, Petitioner Carole Leigh McGraw applied for registration as a real estate salesman with the Florida Board of Real Estate. Question number 6 of the application form inquired about past arrests or charges for violation of law. Ms. McGraw indicated that she had been arrested and as an explanation attached a separate sheet of paper on which she disclosed that she was arrested in July, 1973 for various criminal charges pending before the Court of Common Pleas in Cincinnati, Ohio. She referred the Board for further details to her attorney, James N. Perry, Esquire of Cincinnati, Ohio. No attempt was made by the applicant to conceal any of the facts relating to her outstanding charges. Subsequent to the receipt of her application the Board requested on April 10, 1979, that Ms. McGraw furnish a copy of the indictment and advise the Board of the present status of the indictment. That information was provided by James N. Perry, Esquire who indicated in his letter of April 23, 1979, that counts 1, 2, 3 and 4 of the twenty count indictment had been dismissed. The dismissal was on appeal and probably would be decided eventually by the Ohio Supreme Court as the issue on appeal is the constitutionality of the organized crime status of Ohio. On July 7, 1978, in the Hamilton County Court of Common Pleas, State of Ohio, the applicant, Carole Leigh McGraw, was indicted by Grand Jury on four counts of engaging in organized crime, six counts of forgery, one count of theft in office and one count of felony theft. None of these charges has been brought to trial. Except for the foregoing indictment the applicant has never been charged with any violation of law or with being dishonest or immoral in any way.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Carole Leigh McGraw for registration as a real estate salesman with the Florida Board of Real Estate be granted. DONE and ENTERED this 13th day of February, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1980. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Carole Leigh McGraw 4180 South West 52nd Court Apartment #1 Fort Lauderdale, Florida 33314
The Issue The issues are whether Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes, or obstructed or hindered any person in the performance of his or her duties under Chapter 475, Florida Statutes, in violation of Section 475.25(1)(i), Florida Statutes; or failed to preserve and make available to Petitioner all books, records and supporting documents, in violation of Rule 61J2-14.012(1), Florida Administrative Code, and thus Section 475.25(1)(e), Florida Statutes. If Respondent is guilty of any of these violations, an additional issue is what penalty should be assessed.
Findings Of Fact Respondent was known as Phyllis Mae Wilson, but is now known as Phyllis Mae Perry due to a change in marital status. Since 1987 or 1988, Respondent has been licensed as a Florida real estate broker, holding license number 0462610. From October 1, 1998, through June 4, 2001, Respondent registered with Petitioner her "location address" as 2200 East Oakland Park Boulevard, Fort Lauderdale. From October 1, 1994, through January 9, 2001, Respondent registered with Petitioner her "mailing address" as 1940 Northeast 55th Court, Fort Lauderdale. As part of Petitioner's rotating schedule of office inspections, Monroe Berger, Petitioner's Investigation Specialist II, sent a letter to Respondent dated May 24, 1999, at 1940 Northeast 55th Court, Fort Lauderdale. The letter, which was sent by regular mail, states that Petitioner wishes to conduct an office inspection and escrow review, pursuant to cited statutes and rules. The letter warns: "Please be advised, you must respond to my request within 15 days of your receipt of this letter. Failure to do so may result in you being charged with hindrance in the enforcement of chapter 475, Florida Statutes, and administrative action may be taken against your real estate license." When Mr. Berger did not receive a response to the May 24 letter, he requested, by letter dated June 10, 1999, from the United States Postal Service a confirmation of the Northeast 55th Court address or, if applicable, a new address for Respondent. After the United States Postal Service verified that the Northeast 55th Court address was a good address for Respondent, Mr. Berger sent a second letter to Respondent at the incorrect address of Northeast 55th "Street," not "Court." Dated September 24, 1999, this letter advises that "a complaint has been filed against you"--evidently, by Mr. Berger. This letter gives Respondent 20 days to respond to the complaint. At some point, Respondent received this letter or a copy of it, but the record does not permit a finding, by clear and convincing evidence, as to when Respondent received this letter. Respondent did not respond to the September 24 letter. The only information that Petitioner received from Respondent following the letters of May 24 and September 24, 1999, was a form that Respondent submitted, on January 18, 2000, to advise Petitioner of a change in licensing status of a salesperson working for Respondent. Although not intended to advise Petitioner of any changes in Respondent's location or mailing address, the form contains a new address for Respondent: 3466 Northeast 12th Terrace, Oakland Park. However, in no way does the form respond to the letters of May 24 and September 24, 1999. Although Mr. Berger did not testify at the hearing, as he is now retired, his supervisor at the time testified that Mr. Berger did not pursue the investigation more vigorously on the advice of the supervisor, who counseled patience. Respondent claims that a series of personal and business matters effectively prevented her from attending to such regulatory matters as updated her licensing information and seizing the initiative in response to her early contact with Mr. Berger. During this period of time, Respondent was not active in real estate, but was busy with another business that she and her husband were operating. Respondent was also deterred from producing her real estate records because she knew that a leaky roof had caused them considerable water damage. At the time of her first contact with Mr. Berger, during the period relevant to this case, Respondent had no listings or pending sales, and she so informed Mr. Berger. Respondent had known Mr. Berger and his previous supervisor, whom she had sometimes called when she had had a regulatory question. During the period relevant to this case, Respondent spoke with Mr. Berger four times. For the most part, they agreed that Respondent would try to reassemble whatever undamaged real estate records that she could find. By the summer of 2000, they had agreed that Mr. Berger would send her a questionnaire, which, when completed by Respondent, would confirm the absence of any active escrow account and would obviate the necessity of an office inspection and audit, except possibly to confirm that Respondent had properly posted a sign and license. However, Mr. Berger never sent Respondent the questionnaire, and, after health issues arose, Respondent was again prevented from pressing the matter to a conclusion. Undoubtedly, Respondent did not respond as completely as she should have to the May 24, 1999, letter and to the September 24, 1999, letter, whenever she received it. Obviously, though, the Administrative Law Judge has credited her version of conversations with Mr. Berger in the absence of Mr. Berger's testimony. Although Respondent's testimony concerning Mr. Berger's casual approach to this matter is possibly inconsistent with the September 24 letter, the misaddressing of the letter precludes a determination as to when Respondent received the letter and, thus, a finding of inconsistency between Respondent's version of events and the apparently toughened approach adopted by Mr. Berger in the September 24 letter. At times, Respondent's credibility seemed strained, but these occasions were limited to the seemingly endless accumulation of excuses as to why she may not have received a letter or notice or could not have dealt more directly with this matter at the time. More importantly, Respondent's description of the extent to which Mr. Berger casually pursued the investigation is consistent with the considerable period of time that passed during the investigation without formal action, the prior relationship that Respondent had developed with Mr. Berger and his previous supervisor, and the low risk that Respondent posed to the public, given that her real estate practice was nearly inactive in 1999. For all of these reasons, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to meet any unconditional demands from Petitioner. Thus, Petitioner has failed to prove that Respondent obstructed or hindered the enforcement of Chapter 475, Florida Statutes; obstructed or hindered a person in discharging his duties under Chapter 475, Florida Statutes; or failed to keep and make available to Petitioner the books, records, and documents required by law to be kept and produced upon demand.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 8th day of February, 2002, in Tallahassee, Leon County, Florida. ___ ROBERT E. MEALE 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 8th day of February, 2002. COPIES FURNISHED: Dean Saunders, Chairperson Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack Hisey, Deputy Division Director Division of Real Estate Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Profession Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Robyn M. Severs, Senior Attorney Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Room N308 Orlando, Florida 32802 Phyllis Mae Perry 1940 Northeast 55th Court Fort Lauderdale, Florida 33308
Findings Of Fact The Respondent is now and has been since about September 9, 1988, a licensed real estate salesman in the State of Florida. She was issued license number 0523257. The last license issued was as a salesman, in care of Hammocks Properties, Inc., 9290 Hammocks Boulevard, #404, Miami, Florida 33196, with a home address of 7390 Northwest 48th Street, Lauderhill, Florida 33319-3401, listed with the Florida Real Estate Commission as of April 10, 1990. Prior to obtaining her initial real estate salesman's license, the Respondent filed an application for licensure as a real estate salesman. In that application the Respondent represented that all the answers and statements in the application were true and correct, and as complete as her knowledge, information, and records permit, without any evasions or mental reservations whatsoever. Question 6 on the application form read as follows: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" The Respondent's answer was, "Yes." The second part of Question 6 read as follows: "If you answered "Yes," please state the details including dates and outcome in full. (Use separate sheet if necessary.)" The Respondent's answer to this part of Question 6 was as follows: "I pleaded guilty to a third degree conspiracy, in 1982 in New Jersey involving an insurance claim." By letter dated February 3, 1988, Ms. Ruth Clayton, Supervisor of Application Certification, wrote to the Respondent seeking more details regarding the Respondent's answer to Question 6. By means of an undated letter, which was received by the Florida Real Estate Commission on February 17, 1988, the Respondent replied to Ms. Clayton's further inquiry about her answer to Question 6 on the application. The letter requesting clarification asked the following specific questions: "What was involved? Was it monies, etc? If a monetary value was involved advise us of the value. What was the court's disposition of the matter? Are you on any type of probation or parole?" The Respondent's letter of reply read as follows, in material part: I am replying to your letter of February 3, 1988 with regards to question #6. I was a part owner of a property in New Jersey in 1982 that was damaged. I did not commit any crime, did not make an insurance claim, and received no monetary gain. I was advised by the police without an attorney present to plead guilty to a third degree crime as part of a plea-bargain. This was to save my family from the strain, embarrassment, and expense of a lengthy trial. There was to be no trial and no punishment. I was placed in an Intensive Supervision Program for one year in which my only restriction was not to leave the state of New Jersey without permission. I am not currently, nor was I ever on any type of probation or parole. This is a matter which happened in 1982 in which I signed a document against my interest without knowing the consequences. I was never involved in a criminal matter before, nor after till this date. I am a moral, ethical, law abiding person and have raised five beautiful children. I have been in my own business for the past fifteen years and have never been involved in any litigation. On March 14, 1983, the Grand Jury in Monmouth County, New Jersey, issued a fourteen-count indictment against Frida Koren and others. The indictment alleged that the defendants had committed various crimes in the course of a criminal scheme to set fire to a house owned by the Respondent and her husband. Four of the fourteen courts alleged criminal conduct by the Respondent. On May 12, 1983, the Respondent retracted a plea of not guilty to all counts and entered a plea of guilty to Count 2 of the indictment. The essence of Count 2 was an allegation that the Respondent and the other defendants "... did commit the crime of conspiracy in that they unlawfully agreed with each other to commit the crime of arson, with the purpose of promoting or facilitating its commission...." The caption to Count 2 describes it as a "third degree crime." On October 28, 1983, the Respondent was sentenced to a prison term of 5 years with a minimum parole ineligibility of 2.5 years. By order dated April 17, 1984, the sentence was modified to delete the parole ineligibility clause and to add a fine of $7,500.00. On June 25, 1984, the Respondent was released into the Intensive Supervision Program for a trial period. On January 11, 1985, the Respondent was resentenced into the Intensive Supervision Program for 5 years. By subsequent order, the Respondent was discharged from supervision of the Intensive Supervision Program as of August 9, 1985.
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case concluding that the evidence is insufficient to sustain the charge against the Respondent and dismissing the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of September 1990. MICHAEL M. PARRISH 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 4th day of September 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0448 The following are my specific rulings on the proposed findings of fact submitted by all parties. Findings proposed by Petitioner: Paragraph 1: Rejected as constituting a conclusion of law rather than a proposed finding of fact. (It is an accurate conclusion of law.) Paragraphs 2, 3, 4, and 5: Accepted. Paragraphs 6 and 7: Rejected as irrelevant, because there is no issue in this case regarding the Respondent's citizenship. Paragraphs 8 and 9: Accepted, with some additional facts in the interest of clarity. Paragraph 10: Rejected as contrary to the greater weight of the evidence. Findings proposed by Respondent: The first eight unnumbered paragraphs of findings proposed by the Respondent are accepted. The remaining unnumbered paragraphs of findings proposed by the Respondent are all rejected as constituting argument or proposed conclusions of law, rather than proposed findings. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Dean J. Trantalis, Esquire Arvida Parkway Center 7900 Glades Road Boca Raton, Florida 33434 Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 =================================================================
Findings Of Fact Petitioner was approved to take the real estate salesman examination on November 24, 1980, a Monday. This was the fourth time he would take the examination, since he had failed it on three previous occasions. He was scheduled to take a "crash course" on the Thursday, Friday, Saturday, and Sunday prior to the Monday exam. He failed to attend that course, since he felt sick. On Monday morning Petitioner went to the exam site, turned in his admission slip, showed his driver's license for identification, obtained an examination folder, reviewed the examination questions, determined he could not pass the exam, and walked out of the examination room with his copy of the examination. An investigation ensued immediately. Two days later Petitioner signed an affidavit, before investigator Myers, swearing that he was not at the exam site but was at work all day with his employer Phil Tracy on November 24; that he had returned his admission slip to the Board in Orlando two days before the exam with his request to take the examination at a later date; that he did not have a copy of the examination; and that his driver's license was with him at work on the day of the examination. At Petitioner's request, Phil Tracy executed an affidavit that same day swearing that Petitioner was at work on the morning of the 24th and further swearing that Petitioner is truthful and honest. Unfortunately for Petitioner, in his affidavit, he stated that he would take a polygraph test to verify his statements. After he took the polygraph test and on January 22, 1981, Petitioner executed his second affidavit admitting that he had stolen the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered denying Petitioner's application for licensure as a real estate salesman. RECOMMENDED this 18th day of February, 1982, in Tallahassee, Florida. LINDA M. RIGOT 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: Mr. Manuel de Cardenas, Jr. 270 Buttonwood Drive Key Biscayne, Florida 33149 Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Carlos B. Stafford Executive Director Board of Real Estate Department of Professional Regulation Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact At all times pertinent to the allegations herein, the Respondent, James C. Condrack, Jr., was licensed in Florida as a registered real estate broker under license number 0140067. Respondent J C C Company and Son, Inc., at all times pertinent hereto, was a licensed real estate brokerage corporation in Florida operating under license number 0215540. Both Respondents operate in Sarasota, Florida at 2831 Ringling Blvd., Suite 202 A. In addition to his real estate brokerage business, Respondent Condrack also operates a real estate holding company, (Flagship Equity), which holds approximately six properties valued at about one-half million dollars. These properties are all income producing properties which are either straight rentals or are sold on a lease option basis and generate rental income which in some cases, constitutes a slight positive cash flow. In September and October, 1987, Respondent, Condrack, was seeking to buy several properties in Bradenton, Florida. Two of these were private residences and the third, a multifamily home to be converted into an adult congregate living facility. At the time, Respondent, Condrack, was making the purchases on behalf of his holding company for his personal investments, not as a part of the business of J C C Company and Son, Inc., and was utilizing the brokerage services of Sharon Hendricks, an associate with MacIntosh Realty in Bradenton. Prior to making an offer on the properties in question, Mr. Condrack indicated he would like to have an appraisal made of them and through Ms. Hendricks, was put in touch with Mr. Robert Laney, owner and operator Key Realty Appraisal, Inc. of Bradenton Beach, Florida. On September 9, 1987, Mr. Condrack, through Ms. Hendricks, requested that Mr. Laney perform an appraisal on property located at 6008 11th Street East in Bradenton. The appraisal was accomplished and was delivered on September 15, 1987. Thereafter, on October 9, 1987, Respondent requested, again through Ms. Hendricks, that Mr. Laney do an appraisal on property located at 2109 12th Street West in Bradenton and this appraisal was accomplished and delivered on October 27, 1987. On or before October 20, 1987, Respondent Condrack met with Mr. Laney and went through the property with him. At that time, Respondent gave Mr. Laney no criteria for the appraisal nor did he indicate any minimum figure he would consider acceptable. Mr. Laney did the appraisal as requested and wrote up the results on a form provided by the Federal National Mortgage Association. In conducting his appraisal, he used the three standard appraisal methods; the income method, the cost data method, and the sales data comparison method. As to the third property, located on 55th Avenue in Bradenton, the cost data method reflected a value of $165,282.00; the income method reflected a value of $168,000.00; and the sales data comparison method reflected a value of $155,000.00. To get a valid appraisal using the comparable sales method, a minimum of three comparable sales must be considered. In this case, Laney used six sales no older than three months prior the appraisal date, using research records kept in his office. For the first appraisal, Mr. Laney charged $150.00 plus tax; for the second, the same; and for the third, $300.00 plus tax. This came to a total amount owed of $630.00 which was, by individual property billings, billed to attorney David Wilcox, but shown to be for either Mr. Condrack, in the case of the last property, or Flagship Equity in the case of the other two. Mr. Laney was not paid for any of the appraisals and on January 15, 1988, wrote to Mr. Condrack requesting that he be paid for the three appraisals. He was not paid. Respondent contends that he did not pay Mr. Laney because, as to the last appraisal, that on the 55th Avenue property, he was unable to secure financing from Key Savings Bank, to whom he applied for financing. He contends this was because Key refused to accept the appraisal done by Mr. Laney who was no longer on their list of approved appraisers because he had failed to initiate certification procedures as an appraiser. Mr. Laney contends that at the time he prepared the appraisal and forwarded it to Mr. Condrack, he was on Key's approved appraiser list but was subsequently removed because Key went to a designated appraiser system at the request of the Federal government. It matters not, however, whether Mr. Laney was certified by Key or not. There is no evidence that certification by Key was made a condition precedent to the appraisal services being rendered for Mr. Condrack and it appears that at the time the services were rendered and when the appraisal forms were delivered to the client, he was certified not only by Key but by the Island Bank (now First Union Bank) as well. He is still on the approved list with First Union. Mr. Condrack contends that when he first was turned down for financing on the 55th Avenue property, he was "miffed" and decided to extend payment to Mr. Laney over a period of time rather than pay immediately. He communicated this intention to Mr. Laney. Mr. Laney declined to accept extended payment and instead requested immediate payment. Mr. Condrack has failed to make any payments whatever to Mr. Laney for any of the three appraisals performed for him even though he utilized the appraisal on the first property in purchasing it and is currently drawing income from it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the so much of the Administrative Complaint as relates to the Respondent, J J C Company and Son, Inc., be dismissed, but that the broker's license of Respondent, James C. Condrack, Jr. be suspended for a period of one year. RECOMMENDED this 7th day of April, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3010 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By The Petitioner: 1 - 7. Accepted and incorporated herein except as they pertain to Respondent, J C C Company and Son, Inc., which has been found not to be a part of Respondent Condrack's actions herein. COPIES FURNISHED: James H. Gillis, Esquire Senior Attorney DPR-Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802 James C. Condrack, Jr. J C C Company and Son, Inc. Post Office Box 182 Sarasota, Florida 34230 Kenneth A. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner should be accepted for licensure as a real estate salesman or whether that application for licensure should be denied on account of her past criminal record.
Findings Of Fact On or about January 19, 1989, the Petitioner filed her application for licensure as a real estate salesman. The Respondent is an agency of the State of Florida charged with regulating the practice of licensed real estate salespersons and with regulating and controlling entry into that profession in accordance with the provisions of Chapter 475, Florida Statutes, and related rules. The Petitioner answered question 6 on that application, the question inquiring as to her criminal history, by enclosing a copy of her arrest record and candidly admitting that she had been subjected to criminal prosecution in the past. That arrest record reflected charges of driving under the influence (DUI) to which she plead guilty and was placed on probation for a term of six months in each of two cases. The record also reflected 22 incidents of issuing worthless checks. She was prosecuted for these with the result that adjudication was withheld and the Petitioner was ordered to make restitution and to pay court costs. The criminal record further discloses that Petitioner was adjudicated guilty of grand theft in 1985 involving a retail store, apparently Sears, in Pensacola, for which she was adjudicated guilty and placed under community control for one year, ordered to make restitution and to perform six weeks of community service followed by one year of probation. The denial was only based upon the worthless check charges and the 1983 DUI conviction as well as a conviction in Texas occurring in 1981, when the Petitioner was 17 years old. The Petitioner candidly admitted this criminal histor both on her application form and in her testimony at hearing. The Texas charge was not indicated on her application form because the Petitioner had been told by the prosecutor in Texas that the result of her offense would not be of record for purposes of later employment. That charge involved alleged grand theft which was reduced by the prosecution to a charge of disorderly conduct for which she was adjudicated guilty and required to pay a fine and court costs. The factual circumstance in the Texas charge involved the theft of a tube of lipstick and a bottle of nail polish. The Petitioner testified that the prosecutor in San Antonio had told the Petitioner's mother that it was a juvenile offense which would have no effect on her record. With regard to the bad check charges, full restitution was made to all the vendors involved before the matter went before the court for adjudication. Although the criminal records reflect various arrests through 1985 and in 1986 on the worthless check charges, in fact the Petitioner established that the checks were all written in a very short period in the summer of 1985, but were prosecuted at different times, hence the different arrests. The Petitioner is genuinely remorseful about those charges and the related conduct and established that, by way of mitigation, they occurred at a time when she was only 21 years old, was married, but was having marital discord with her then husband, who exerted a great deal of influence in inducing her to issue the worthless checks. They have since become divorced and she is making an effort to better herself and engage in a productive life and career. She freely acknowledges that at the time of the San Antonio, Texas, disorderly conduct conviction she was 17 years old and at the time of the worthless check and grand theft convictions in Florida she was only approximately 21 years of age, was quite immature and having significant personal problems which she has since overcome. She is genuinely sorry for engaging in such conduct and has consistently attempted to improve her life ever since. She has held a number of jobs as waitress and cashier for local restaurants in the Pensacola area and the Navy Club at the Pensacola Naval base. This includes the handling of large sums of money or her employers for which she has an unblemished record, accounting for all monies entrusted to her in an honest, reliable way. This testimony to this effect is borne out by various letters of recommendation which the Respondent stipulated into evidence and in which former employers and friends all uniformly attest to her good reputation and character, all of whom knew of her past criminal history. They unhesitatingly describe her reputation and character as good. Her employers so attesting to her reputation for honesty and good morals attest to the fact that she worked in a capacity as waitress and cashier and successfully and honestly handle their funds. In particular, as a waitress at the Pensacola "Navy Club," she was placed in charge of the bingo concession or activity and served as the cashier for thousands of dollars collected in the course of such activities. She handled and accounted for these large sums of money in an honest, reliable and accurate fashion to the satisfaction of her employer. The Petitioner's one witness aside from herself was Rusty Coleman. He has known the Petitioner for at least three years and they are best friends. He was aware of her past criminal problems because she has told him about them herself. He finds her trustworthy and an honest, decent person who is seeking to better herself and become a reliable, productive citizen and member of society, as evidenced by her pursuing her higher education since the criminal episodes of record. It is noteworthy that although 22 incidents of prosecution for worthless checks appear at first to be a significant level of such miscreant conduct, that all the checks were issued within a short period of time in 1985 when she was under considerable stress due to her unfortunate and successful marriage situation, and related financial difficulties, and the same consideration applies to the issue of the grand theft conviction and the DUI convictions in 1983. Under ordinary circumstances this aggregation of criminal convictions and conduct would appear sufficient to preclude an applicant from licensure approval only four years after the last incident of such conduct, as was reflected in her criminal record. It is noteworthy however, that, in addition to the Petitioner's own credible, candid testimony concerning her genuine change in attitude and attempt to live an honest, productive life, that none of this type of conduct was repeated after the time when she ended her unsuccessful marriage and the related stress it caused in both an emotional and financial sense. She has honestly pursued gainful employment ever since, in positions of trust, handling large sums of money and further has embarked on a higher education career as well as, at the same time, successfully completing and passing her real estate instruction course in an effort to prepare herself for a productive, honorable profession. Under these circumstances, established by the Petitioner, her attending witness, and the corroborative statements admitted in evidence, although only four years have elapsed; it is found that in her particular situation that is sufficient time, coupled with the other evidence of her rehabilitation, to justify admitting her to licensure if she should pass the state examination involved. This is particularly true given that the Respondent has sufficient regulatory authority to oversee her entry into and practice of the profession so that it can ensure that the public is protected through its authority to impose accounting and reporting requirements on all funds and transactions the Petitioner might engage in as a realtor as conditions upon her entry into the profession. Under the peculiar circumstances of this case it is thus fund that the Petitioner has established her rehabilitation and resultant qualification for licensure.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the pleadings and arguments of the parties, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That Petitioner's application for licensure as a real estate salesman be granted. DONE and ENTERED this 30th day of November, 1989, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2127 Respondent's Proposed Findings of Fact Accepted. Accepted except that the criminal record in evidence shows that only 22 charges of issuing worthless checks were the subject of criminal proceedings. Accepted. Accepted. Accepted in a general context, but subordinate to the Hearing Officer's finding of fact on this subject matter. Accepted. COPIES FURNISHED: Delia H. Dolan 2635 Belle Christiane Circle Pensacola, Florida 32503-5860 Manuel E. Oliver, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32802 Darlene F. Keller, Director Department of Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue Whether the Respondent committed the violations alleged in the administrative complaint and, if so, what penalty, should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the regulation of real estate licensees in the State of Florida. At all times material to the allegations of this case, the Respondent was a licensed real estate salesman, license number 0646052. On or about July 15, 1996, the Respondent completed an application for licensure as a real estate salesperson that was submitted to the Department. Such application posed several questions to be completed by the Respondent by checking boxes "Yes" or "No." Among such questions was the following: 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." In addition to the foregoing, the question also advised the Respondent as follows: 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 an attorney or the Division of Real Estate. After reviewing the foregoing question, the Respondent submitted the answer "No" on his application for licensure. The Respondent represented at hearing that prior to submitting the application he consulted an attorney. The Respondent's application for licensure also contained an affidavit wherein the Respondent, after being sworn, represented that he had carefully read the application and that all answers to same are true and correct. The answer the Respondent gave to the above-described question was not accurate. In fact, in Case No. 87-2661-CF before the Circuit Court of Alachua County, Florida, the Respondent was charged with grand theft of the amount of $4200.00, a felony. The resolution of such charge came when the Respondent entered a plea of nolo contendere. Thereafter the Respondent was placed on probation for a period of three years and was directed to pay court costs and restitution. The court withheld adjudication and the Respondent successfully completed all conditions of the probation. At the time of the foregoing plea the Respondent was represented by counsel, was apprised of his rights regarding the charge pending against him, had no prior convictions, and was approximately 19 years of age with satisfactory mental health. The record of the Respondent’s plea and the conditions of his probation have not been sealed nor expunged. The Respondent did not deny the factual allegations in the underlying criminal matter. That is, he has not alleged that the charge of grand theft was untrue. He has asserted that he believed the record would not appear on a background check and that, therefore, he unintentionally failed to disclose the criminal record.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a final order revoking Respondent's license. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. J. D. 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 15th day of December, 1999. COPIES FURNISHED: Nancy P. Campiglia, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Thomas Payne, Esquire 3780 West Flagler Street Miami, Florida 33134 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 William Woodyard, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
