The Issue Whether Petitioner lacks the moral character to be licensed as a Florida real estate salesperson.
Findings Of Fact On May 4, 2004, Petitioner, Rene Anthony Acker, filed an application for licensure with the Florida Real Estate Commission as a real estate salesperson. On that application, Acker revealed that he had pled nolo contendere and was placed on probation for twelve months on July 2, 2003, for fraudulent use of a credit card. At hearing, Acker testified regarding the events that led to his arrest. In November of 2003 during the beginning of the Christmas shopping season, while he was a clerk at a Target Department Store, a person of interest to local law enforcement for credit card theft and who was under surveillance, presented merchandise to Acker for purchase with a credit card. The card was in the name of someone other than the customer. The card was accepted by Acker and the system, and the transaction completed. Subsequently, the customer returned with a high- dollar item and attempted to purchase it with the same credit card. Acker accepted the card, but the system refused to accept the card on the second occasion. Several months later, the deputy sheriff, who was working the case, came to Acker and asked him to identify the customer as part of an effort to make a case against the customer, a person with whom Acker was acquainted as the son of the owner of a restaurant where Acker had worked as a waiter. Acker told the deputy that he had no independent recollection of the transaction, and could not identify the customer from the surveillance camera pictures he was shown. The deputy indicated that if Acker did not cooperate and identify the individual, Acker would be charged with credit card fraud. Acker stated that he could not identify the customer from the photographs as the person with whom he was acquainted. Acker was subsequently charged with credit card fraud. After consulting an attorney, Acker pled nolo contendere to the charge. It was clear that this was a plea of convenience under the plea agreement that was worked out. The only evidence introduced by the Commission was Acker's file that reflected that Acker revealed the plea on his application and the court records of his plea, probation, and early release from probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: It is recommended that application of Petitioner be granted pursuant to the Commission's discretion upon consideration of the matters presented in mitigation. DONE AND ENTERED this 12th day of August, 2005, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN 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 12th day of August, 2005. COPIES FURNISHED: Rene Anthony Acker 138 Via Tisdelle Orange Park, Florida 32073 Barbara Rockhill Edwards, Esquire Department of Legal Affairs Administrative Law Division The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Guy Sanchez, Chairman Florida Real Estate Commission 400 West Robinson Street, Suite 801N Orlando, Florida 32801
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated April 20, 1995, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the stipulation of the parties, and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to Chapters 120, 455, and 475, Florida Statutes. The Florida Real Estate Commission ("Commission") operates within the Department and is the entity directly responsible for licensing and disciplining those licensed under Chapter 475. Section 475.02, Florida Statutes. The Division of Real Estate operates within the Department and assists the Commission in carrying out its statutory duties. Section 475.021, Florida Statutes. Janice H. Little is, and was at all times material to this action, licensed as a real estate broker in Florida and was issued license number 0370239. The last license issued to Ms. Little was as a broker %Dennis & Little, Inc., t/a Kays Realty, 421 Southwest 31st Avenue, Fort Lauderdale, Florida, 33312. On April 7, 1993, Ms. Little obtained an offer from Karlene Bascombe to purchase real property owned by Maxine Williams. Ms. Little was acting as the seller's co-broker in this transaction. Ms. Little provided Ms. Bascombe with the names of several mortgage companies. Ms. Bascombe decided to apply for financing to Vision Mortgage Corporation, one of the companies identified by Ms. Little, and she met with Henry Yee, the manager of Vision Mortgage Corporation, at Ms. Little's office. Ms. Little introduced Ms. Bascombe to Mr. Yee but did not participate in their meeting. As part of her loan application, Ms. Bascombe authorized Vision Mortgage Corporation to verify her past and present employment records, among other things. At some point during the time Ms. Bascombe's loan application was being processed, Ms. Little learned that Ms. Bascombe's income was not sufficient to warrant approval of the application. Ms. Little was aware that Ms. Bascombe was a bookkeeper and that she worked full time at Lerner's. After learning that Ms. Bascombe had insufficient income to secure financing for the purchase of Ms. Williams' property, Ms. Little approached Donaval Powell and asked if he would be interested in hiring a part-time bookkeeper. Mr. Powell owns Filament Electronics, a business that sells and repairs electronic equipment. The business is located in the same shopping center in which Ms. Little's office was located and in close proximity to her office. Filament Electronics has been in the same location since it opened in 1992. Ms. Little and Mr. Powell have known each other since shortly after he opened his business. Mr. Powell told Ms. Little he might want to hire a part-time bookkeeper, but Mr. Powell heard nothing further about this matter. He never met Ms. Bascombe, he did not hire her, and she was never employed by Filament Electronics.1 Blanca Tanadell, an employee of Vision Mortgage Corporation, prepared a Fannie Mae Request for Verification of Employment form for Ms. Bascombe. Ms. Tanadell filled out boxes one through eight of the form, and she identified Filament Electronics as the employer from whom verification of Karlene Bascombe's employment was sought. Ms. Tanadell sent the form to Ms. Little, even though the instructions included on the form direct the lender to send the form to the named employer. Ms. Little completed boxes nine through thirty of the employment verification form in which Filament Electronics was identified as Ms. Bascombe's employer. Ms. Little represented that Ms. Bascombe was employed there in January, 1991, and that her present position was as a bookkeeper. Ms. Little knew when she completed the form that Ms. Bascombe had not been employed by Filament Electronics prior to April 10, 1993, but she testified that she believed that Mr. Powell had hired Ms. Bascombe subsequent to that date. Ms. Little further represented that Ms. Bascombe's annual "current gross base pay" was $24,250.00 and that her gross earnings for 1992 were $24,250.00 and for 1991 were $23,500.00. At the time she completed the employment verification form, Ms. Little had no documentation to support the earnings she attributed to Ms. Bascombe.2 Finally, Ms. Little signed the name "Hyacinth Fuller" and identified her as "Supervisor."3 She then sent the completed employment verification form to Vision Mortgage Corporation. Ms Little did not ask Mr. Powell to complete the employment verification form, nor did she ask him whether he employed Ms. Bascombe and, if so, the amount of her earnings. Ms. Bascombe's loan application was approved, and she purchased the real property offered for sale by Maxine Williams. Ms. Little was paid a commission at closing in the amount of three percent of the sales price of the property. Ms. Bascombe subsequently defaulted on her loan, and it was in the course of the loan company's investigation of the default that Mr. Powell denied ever having employed Ms. Bascombe. Ms. Little is licensed in Florida as a mortgage broker, and, at one time, her license was with Vision Mortgage Corporation. She is familiar with the procedures for processing loan applications. The stipulation entered into by the parties and the evidence presented by the Department are sufficient to establish that Ms. Little is guilty of fraud or misrepresentation in a transaction related to her business as a real estate broker. Ms. Little seeks to excuse her actions by claiming that she believed that Ms. Bascombe had been hired by Mr. Powell after April 10, 1993, and that she was provided with the earnings figures by Henry Yee, who was the manager of Vision Mortgage and whom she considered trustworthy. She also claims that Mr. Powell wants to harm her because she spurned his sexual advances and told his wife that he constantly bothered her. These contentions are, however, contrary to the more credible and persuasive proof and, even if true, do not alter the fact that Ms. Little acted with, at the very least, extreme reckless disregard for the truth.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding Janice H. Little guilty of violating Section 475.25(1)(b), Florida Statutes, and revoking her real estate broker's license. DONE AND ENTERED this 5th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1997.
The Issue The issue addressed in this proceeding is whether Respondent's life and health insurance agent's licenses should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 626, Florida Statutes and whether Respondent is eligible for renewal of his life insurance agent's license.
Findings Of Fact Respondent, Lemar Bonne Hall, is a licensed life and health insurance agent in the state of Florida. He has been so licensed for more than 10 years. Respondent has made application for the renewal of his life insurance agents license pursuant to Chapter 626, Florida Statutes. In the early 1980's, Respondent and his wife began experiencing credit difficulties due to some inaccurate information on their individual credit reports. The nature of the inaccuracy was not disclosed by the evidence presented at the hearing. Respondent and his wife could not get the inaccurate information removed from their credit reports and in 1983 sought the help of a credit repair service located in Houston, Texas. After paying the credit repair service $1,800.00, the service advised the Halls to create alternate credit reports through the use of different social security numbers. The credit repair service represented that this tactic was legal as long as there was no intent to defraud a financial institution. The credit repair service gave the Hall's a list of social security numbers to use. The social security numbers were numbers of various relatives of the Halls and included Mr. Hall's military identification number. It was not until 1988 that the Halls implemented the repair service's program of creating alternate credit reports. In 1988 the Halls made application to several financial institutions for loans of differing amounts. The loan officers Mr. Hall dealt with had been acquainted with him for several years. Mr. Hall testified that he gave these various officers all of his social security numbers. However, when the loan officer's secretary typed in the information on the loan application, the secretary only inserted one of the many numbers he had given. No substantial evidence was submitted to rebut Mr. Hall's testimony. The Halls made regular payments on the loans until they filed for bankruptcy in 1989. Payments on the loans eventually resumed. The bankruptcy was filed because of a potential judgment which might result from tort litigation involving Mr. Hall. At that time the bankruptcy trustee discovered the anomalous social security numbers and contacted the FBI. Mr. Hall cooperated with the FBI in every respect and is one of the government's witnesses in a nationwide investigation of credit repair services advising people to use the file segregation method of credit repair. However, on August 3, 1989, Respondent was indicted on seven (7) counts of violating Title 18, United States Code, Section 1014, and with seven (7) counts of violating Title 42, United States Code, Section 408(g)(2). All the counts involved felonies, punishable by more than one year imprisonment, and were generally related to obtaining or attempting to obtain a loan from a federally insured financial institution by the use of false social security numbers, misrepresentation or fraud with the intent to defraud such institution. Respondent's wife was also indicated on similar counts. Throughout the FBI investigation and in particular after the Halls' indictment, Ms. Hall's health began to seriously fail her due to the embarrassment and pressure she felt from the criminal charges she and her husband were facing. Therefore, on November 29, 1989, Respondent sacrificed himself for the sake of his wife and entered a plea of guilty to three (3) counts of violating Title 18, United States Code, Section 1014, and three counts of violating Title 42, United States Code, Section 408(g)(2), as charged in the indictment in Case No. TCR-04036. As part of the plea agreement entered into by Mr. Hall, all charges were dropped against Ms. Hall. The plea of guilty, involved in this case, was entered for the convenience of the Halls and not because Mr. Hall had committed any crimes involving moral turpitude. In fact, the evidence did not demonstrate that the Halls had any intent to defraud the financial institutions they dealt with and did not demonstrate that Mr. Hall was untrustworthy or lacked the fitness necessary to engage in the business of insurance. However, the evidence did demonstrate that Mr. Hall violated Section 626.621(8), Florida Statutes, by pleading guilty to a felony or a crime punishable by more than one year imprisonment. Respondent is, therefore, subject to discipline for the violation outlined above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Respondent be found guilty of the violating Section 626.621(8), Florida Statutes, and that his licenses and eligibility for licensure be suspended for a period of six (6) months, after which Respondent's licenses and eligibility for licensure be reinstated without prejudice. DONE and ORDERED this 14th day of January, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER 1. The facts contained in paragraphs 1, 2, 3, 4, 5 and 6 are adopted in substance, in so far as material. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 David D. Hershel, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Mark Zilberberg, Esquire 217-19 East 6th Avenue Tallahassee, Florida 32302 Don Dowdell General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes (2003),1 and Florida Administrative Code Rule 61J2-2.027(2), and if so, what discipline should be imposed.
Findings Of Fact Respondent is a licensed real estate sales associate. She was licensed in 2003. Her license number is 3061179. Respondent was working for Weichert Realty in the Orlando area at the time of the final hearing. She started working for that firm in October 2006, and prior to that, she “did not do a whole lot with [her] license as far as practicing real estate.” Respondent filled out and submitted her license application over the Internet. She submitted a signed notarized statement dated January 15, 2003, attesting that she answered the questions in the application “completely and truthfully to the best of [her] knowledge.” She also submitted a fingerprint card. The evidence clearly and convincingly establishes that there were at least three material misstatements and omissions in Respondent’s license application. First, Respondent did not provide a Social Security number (SSN) in her license application. The SSN that she subsequently provided to the Division, 378-72-0704, was incorrect. Respondent testified that her SSN is 378-62-0704. That is the SSN listed for Respondent in the driver’s license records maintained by the Florida Department of Highway Safety and Motor Vehicles (DHSMV). There is evidence suggesting that Respondent’s SSN may actually be 380-80-3178, but the evidence is not clear and convincing on that point.3 The document on which Respondent provided the incorrect SSN was not offered into evidence by the Division. Respondent denied providing an incorrect SSN, and she testified that if she did provide an incorrect SSN, it must have been typographical error. Second, the only name listed for Respondent in her license application was Yolanda Orr, which was Respondent’s married name and her legal name at the time she submitted her application. Respondent answered “no” to the question that asked whether she has ever “used, been known as or called by another name (example - maiden name . . .) or alias other than the name singed to the application.” (Emphasis supplied.) Respondent’s maiden name is Yolanda Small. She used that name until July 1998, when she was married. She was divorced in February 2006, and she is again using her maiden name. Respondent currently has two valid forms of identification issued by DHSMV: a Florida driver’s license in the name of Yolanda D. Small (No. S540-964-67-7491) and a Florida identification card in the name of Yolanda D. Orr (No. O600-964-57-7490). The driver’s license was issued in March 2006,4 and expires in July 2010; the identification card was issued in August 2002, and expires in July 2007. The birth date listed on the driver’s license is July 9, 1967, whereas the birth date listed on the identification card is July 9, 1957. Respondent testified that her middle name is Daniella, not Denise. She further testified that she has never used the name Yolanda Denise Orr. In response to a request to the state court in Michigan for records relating to Respondent, the Division was provided documentation of multiple traffic offenses committed in Flint, Michigan in 1999 and 2001 by Yolanda Denise Orr, as well as documentation of criminal offenses committed in Michigan by Yolanda Daniella Orr and Yolanda Danielle Orr. The traffic records do not list the defendant’s Social Security number, but the birth date listed in the records matches Respondent’s birth date. Respondent’s testimony that the traffic offenses did not involve her was not persuasive, nor was her claim there must be multiple Yolanda Orr’s in Flint, Michigan, with the same birth date as hers. Respondent admitted to being in Flint, Michigan at the time of the traffic offenses, and she admitted that she drove a Ford vehicle at the time of the ticket that was issued to Yolanda Denise Orr in October 2001 while driving a Ford. Moreover, the Michigan driver’s license number of Yolanda Denise Orr contained in the traffic records -- O600961139544 -- is identical (except for one number) to the Michigan driver’s license number -- O600961135544 -- that Respondent surrendered to DHSMV when she first applied for a Florida driver’s license. The evidence is clear and convincing that the Yolanda Denise Orr referred to in the traffic records is Respondent, and that Respondent failed to disclose that name (and her maiden name, Yolanda Small) in her license application. Third, Respondent only disclosed one criminal offense in response to the question in the application that asked whether she had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) . . . .” The criminal offense that Respondent disclosed was, according to the application, a 1987 offense in Louisiana which Respondent “used the wrong social security number” when “filling out [her] financial aid papers for the first time.” There is no evidence that Respondent was prosecuted for such an offense in Louisiana. Respondent was, however, prosecuted in federal court in Michigan in 1993 for using a false SSN on two separate student loan applications. Those offenses were prosecuted as part of an indictment that also included four counts of filing fraudulent tax returns with the Internal Revenue Service and two counts of using a false SSN on tax returns. In February 1995, Respondent pled guilty to one count of filing a fraudulent tax return, one count of using a false SSN on a tax return, and one count of using a false SSN on student loan applications. The other counts of the indictment were dismissed as part of her plea agreement. In September 1995, Respondent was adjudicated guilty of the offenses to which she pled guilty and was sentenced to six months in federal prison, followed by three years of probation. She was also required to pay restitution in the amount of $8,177 to the Internal Revenue Service and restitution in the amount of $2,761 to the U.S. Department of Education. Respondent testified that “the whole reason the [federal] case came about” was that she filed a tax return not knowing that one had already been filed on her behalf by H&R Block; that the investigation into the “double” filing of the tax return led to the charge involving the “student loan application that had the wrong social security number on it”; and that it was her understanding that the offenses related to the student loan application submitted to Grambling State University, not any colleges in Michigan. Respondent’s testimony regarding the circumstances giving rise to the federal offenses was not credible because, among other things, she was charged with filing false tax returns on three separate occasions -- in 1990, 1991, and 1992 - - not just one time. The background check conducted on Respondent based upon the fingerprint card that she submitted as part of her license application identified two additional criminal offenses that Respondent did not disclose in her application. The first undisclosed offense was a 1990 felony retail fraud offense prosecuted in state court in Michigan. Respondent pled guilty to the offense and was sentenced to one year of probation. The record does not reflect the circumstances surrounding the retail fraud offense, but Respondent described it as “basically a petty theft.” The second undisclosed offense was a 1991 bad check charge, which was also prosecuted in state court in Michigan. The case was not resolved until February 2001 because, according to Respondent, it involved a check she wrote prior to leaving for college and she was unaware that that a case was pending against her until she returned to Michigan after college. Respondent was required to disclose criminal traffic offenses in her license applications; she was not required to disclose traffic offenses such as “parking, speeding, inspection, or traffic signal violations.” The traffic records suggest that several of the offenses may have been criminal in nature (e.g., driving with a suspended license), but the evidence was not clear and convincing on that issue.5 Respondent testified that she did not disclose the state court offenses because she did not remember them at the time she submitted her license application. She testified that she considered the federal offenses to be related and that she thought that disclosing one of the offenses was adequate since the other offenses were related and prosecuted together. Respondent’s explanation as to why she did not disclose all of her federal offenses is not entirely unreasonable under the circumstances. The offenses were all prosecuted in a single criminal proceeding and, even though they involved offenses committed in Michigan between 1990 and 1992 (rather than in Louisiana in 1987), they did involve use of an incorrect SSN on a student loan application. Respondent’s explanation as to why she did not disclose the offenses prosecuted in state court was not plausible. It is understandable that Respondent might not recall all of the details of the retail fraud offense since it occurred more than 10 years before the date of her application, but her testimony that she did not even remember the existence of the offense at the time she filled out her application was not credible or reasonable. Respondent’s testimony that she did not remember the bad check offense at the time she filled out her license application was even less credible because the court records related to that offense reflect that the case was not finally resolved until February 2001, which only two years prior to the date of Respondent’s license application. Respondent testified that she was told by a Division employee that she did not need to disclose all of the counts of the federal case because the related offenses would be discovered as part of the background screening based upon the fingerprint card submitted by Respondent. Respondent offered no evidence to corroborate her unpersuasive, self-serving testimony on this point. Respondent testified that she was directed by the same Division employee to provide a supplemental letter to the Division explaining the federal offenses, and that she did so. However, there is no record of what, if anything, Respondent submitted to the Division. Respondent’s application did not go to the Florida Real Estate Commission (Commission) for approval even though a criminal history was disclosed in the application. The Commission policy in effect at the time authorized the Division to approve such applications on a case-by-case basis. The policy did not require an applicant such as Respondent to appear before the Commission, as is the case under current Commission policy. Respondent did not present any evidence of mitigation at the final hearing. However, in her post-hearing filing, she stated, “I am a single mother, and as such, I rely on my real estate business as my only source of income.”
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order that: finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes (Count I of the Administrative Complaint); finds Respondent guilty of violating Florida Administrative Code Rule 61J2-2.027(2) and, hence, Section 475.25(1)(e), Florida Statutes (Count II of the Administrative Complaint); revokes Respondent’s license; and imposes an administrative fine of $1,000 or the Division’s investigative costs, whichever is less. DONE AND ENTERED this 19th day of February, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 19th day of February, 2007.
The Issue Should Petitioner's benefits under the Florida Retirement System be forfeited based on Petitioner having pleaded guilty to a felony, conspiracy to interfere with commerce by committing extortion, for which he was subsequently adjudged guilty in federal court?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Division is charged with the responsibility of administering the Florida Retirement System. At all times material to this proceeding, Petitioner, James Sanders, was employed by the Collier County, Florida Sheriff's Office as a Law Enforcement Officer. On April 26, 2000, the Grand Jury for the United States Middle District of Florida, Fort Myers Division handed down an Indictment wherein Petitioner was charged with, among other things, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2. On April 30, 2001, Petitioner, in accordance with the Plea Agreement dated January 19, 2001, pleaded guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion in violation of Title 18 U.S.C. Sections 1951 and 2, a felony, as that term is defined in Section 775.08(1), Florida Statutes. On May 2, 2001, Judge John E. Steele, United States District Judge, Middle District of Florida, Fort Myers Division entered a Judgment in a Criminal Case wherein Petitioner was adjudged guilty (convicted) of Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner expressly admitted his guilt to that charge under the terms of the Plea Agreement. By entering his plea of guilty to Count One of the Indictment, conspiracy to interfere with commerce by committing extortion, a violation of Title 18 U.S.C. Sections 1951 and 2, Petitioner admitted to entering the conspiracy for monetary gain, and that he obtained money in furtherance of the conspiracy. After his conviction, Petitioner applied for, and began receiving, retirement benefits under the Florida Retirement System. Upon learning that Petitioner had been convicted of the charge of conspiracy to interfere with commerce by committing extortion by the United States District Court, Middle District, Fort Myers Division, the Division investigated and subsequently advised Petitioner that his retirement benefits under the Florida Retirement System were being forfeited. Neither the Division nor Petitioner presented any evidence of: (a) Petitioner's accumulated contributions to the Florida Retirement System as of the date of his termination; or the amount of retirement benefits that Petitioner had received prior to the Division advising him of the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division enter a Final Order finding that Petitioner has forfeited all rights and benefits under the Florida Retirement System upon his April 30, 2001, federal felony conviction and requiring the refund by Petitioner of any benefits paid to him in excess of Petitioner's accumulated contributions. DONE AND ENTERED this 11th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 11th day of September, 2002. COPIES FURNISHED: James Sanders c/o FCI Edgefield 501 Gary Hill Road Post Office Box 723 Edgefield, South Carolina 29824 Peggy Sanders Post Office Box 5103 Immokalee, Florida 34143 Thomas E. Wright, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
The Issue An administrative complaint dated May 19, 1992, alleges various violations of the Florida Insurance Code, Chapter 626, F.S., predicated on the assertion that Respondent received a premium check, added his own name, and deposited it to his own personal bank account without forwarding the premium to an insurer or returning the premium to the customer. The issue in this proceeding is whether those violations occurred, and if so, what discipline or penalty is appropriate.
Findings Of Fact Currently, and at all times relevant to the incidents which are the subject of this proceeding, Respondent is and has been licensed in Florida as a life agent and as a life and health agent. On or about December 7, 1990, Suzanne Paul, a licensed insurance agent, went to Baker's Garage, Inc., in Jacksonville, Florida, in response to a lead card given to her by Respondent, her regional manager. She spoke with Mr. and Mrs. Baker and solicited and procured an application for health insurance to be issued by Fidelity Security Life Insurance Company through AMS Administrators. Suzanne Paul at the same time obtained from Judy Baker a premium check in the amount of $864.02 for three months' premiums, paid to the order of "AMS Administrators." Mrs. Baker is secretary and treasurer of Baker's Garage, Inc., and handles the company's insurance. Suzanne Paul turned the check over to her manager, Respondent. She never received a commission or a policy. She became concerned, and after she was called by Mrs. Baker, she contacted Respondent in Arizona to see what was going on. He told her he was going to place the insurance with another company. The Bakers never received the policy they requested, nor any other policy from Respondent. Instead, Respondent added his own name to the payee line of Judy Baker's check and deposited it to his personal account number 14166402473 at the First Union National Bank in Maitland, Florida. Upon demand by Mrs. Baker, and without knowledge of Respondent, the bank returned the $864.02 to Baker's Garage. Respondent claims that he had authority from Mrs. Baker to add his name to the check and deposit it to his own account. He contends that he found a policy for the Bakers with better coverage and told Mrs. Baker he would remit payment with his personal check for that coverage. Allegedly, the company returned Respondent's check and the application to him and he lost them. He produced no evidence that he had ever submitted an application on the Bakers' behalf. Mrs. Baker did not give Respondent permission to add his name to her check and she has no recollection of his speaking to her about a substitute policy. When she tried to reach his office in Jacksonville, the telephone had been disconnected.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations of Chapter 626, F.S., as charged, and revoking his licensure as an insurance agent in Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of October 1993. MARY CLARK 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 21st day of October 1993. COPIES FURNISHED: John R. Dunphy, Esquire Division of Legal Services 612 Larson Building Tallahassee, Florida 32399-0300 Robert Greenwald 274 Altamonte Bay Club Circle, Suite 202 Altamonte Springs, Florida 32701 The Honorable Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Bill O'Neil General Counsel Department of Insurance The Capitol, PL-11 Tallahassee, Florida 32399-0300
The Issue This case arises out of a challenge to the validity of a policy and procedure at Baker Correctional Institution. That policy and procedure provides for the use of "contact cards" to record infractions committed by inmates while incarcerated at Baker Correctional Institution. At the formal hearing, the Petitioners called as witnesses, Joseph Edward Rowe, B. W. Stewart, Gerald Ford, Jack Swain Hazouri, Jr., and Earl Washington. Each of the Petitioners also testified on their own behalf. The Department called as its only witness W. Marion Ellis. The Petitioners offered and had admitted two exhibits, and Respondent offered and had admitted into evidence one exhibit. Subsequent to the final hearing, the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they were rejected as being unsupported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact Petitioner Joe Richardson is presently incarcerated at Baker Correctional Institution. Petitioner, Douglas Adams was incarcerated as an inmate at Baker Correctional Institution from September 23, 1983, until January, 1984, when he was transferred to Union Correctional Institution. Petitioner Joe Lewis Holland was incarcerated at Baker Correctional Institution from September 23, 1983, to January 24, 1984, when he was transferred to Union Correctional Institution. The Petitioners by this action are challenging the validity of a policy at Baker Correctional Institution which involves the use of a form called a "contact card" to record infractions committed by inmates. The contact cards are not intended to be a permanent record in the inmates' file and is used for various purposes within Baker Correctional Institution. The entries on contact cards are in many instances used as an alternative for giving the inmate a "disciplinary report" (hereafter referred to a "DR"). Prior to the contact card policy being implemented at Baker Correctional, that institution was experiencing 350 to 370 DR's per month. As a result of the use of the use of contact cards that number is now reduced to 70 per month. The contact cards are not used in determinations related to gain time or parole. The contact card is intended to be a behavior card which is used to monitor the inmates behavior without writing the inmate up and placing it in his record jacket as a permanent file. Because there are three different shifts of correctional officers the contact cards are used to provide each shift an accurate record of the inmates' behavior during the other shifts. One of the primary purposes of the contact card is to make the inmate responsible for their individual actions regardless of how minor or major the behavior may be. Many of the infractions entered on contact cards could appropriately be the subject of a DR. The contact card is treated as an informal record and the inmate is not required to sign it. The inmate is required to sign a Corrective Consultation form when he receives such a consultation. That form is considered a permanent formal record. There have been instances where entries were made on a prisoner's contact card and the prisoner was not informed of the entry. On December 22, 1983, Major B. W. Stewart, Baker Correctional Institution, sent an interoffice memorandum to all shift supervisors at Baker Correctional. The memo required the supervisor to instruct all their correctional officers to advise or counsel an inmate any time an entry is made on an inmate's contact card. The memo acknowledges a "habit" of writing an inmate up and not making the inmate aware of the write-up. The entries made on the contact cards are used to determine who is permitted to live in the preferable dormitories such "T" building. The number of entries necessary to cause a reassignment of an inmate from a preferable dormitory to a less preferable dormitory will depend upon the seriousness of the infractions. Dorm cards are also used in determining job assignments. In some instances when an inmate commits an infraction he is given a choice of extra duty or a write-up or DR. It is up to the officer placing the entry on the contact card as to whether the inmate performs extra duty as a result of the entries on the contact card, the extra duty is voluntary extra duty. If the infraction is serious enough and the inmate refuses extra duty, he will receive a disciplinary report. If the inmate desires to challenge an entry on his conduct card he can file for an administrative remedy with the administration of the institution, but he does not have the right to a hearing such as those conducted as part of the DR procedure. Joseph Edward Rowe at the time of the formal hearing in this matter, had been incarcerated at Baker Correctional Institution for a period of approximately ten (10) months. During that time period he had certain infractions placed on his contact card and was not informed of these entries. One evening Mr. Rowe was contacted by Sgt. Whitehead and informed that if he received one more infraction on his conduct card he would be moved out of Building G. He had eight write-ups or entries on his conduct card and he had never been counseled about any of the infractions which were the subjects of these entries. One of the entries was for talking too loud in the hall. Mr. Rower was received no disciplinary reports at Baker Correctional Institution. It is considered somewhat of a privilege to live in Building G because it is a preferable building. When he met with his classification officer for his progress report, Mr. Rowe was informed that the contact card was used in arriving at his overall evaluation. Mr. Rowe did not know whether his conduct card had ever been used in granting or denying him gain time. On one occasion Petitioner Joe Lewis Holland received an entry on his contact card for having a chair under his bed. When the correctional officer indicated he was going to write him up on a contact card for his infraction, Mr. Holland informed him it was not his chair. Another inmate Earl Washington, informed the officer that he had placed the chair under Mr. Holland's bed. The infraction was sill placed upon Mr. Holland's contact card. At the time the entry was made, Mr. Holland was not made aware that the entry was in fact being placed on his contact card. Petitioner Joe Richardson has, since the contact card policy was implemented, received several entries on his contact card. He was not aware of these entries at the time they were being made. Mr. Richardson has never received a DR. Petitioner Douglas Adams has received one write-up on his contact card and that write-up was for failing to get up for his "early chow." Early chow is for those inmates assigned to outside details. Mr. Adams, at no time while he was incarcerated at Baker Correctional Institution, was assigned to outside details. In January, 1984, Mr. Adams was transferred from one of the preferable dormitories to an open bay dormitory because of three entries on his contact card. Mr. Adams was not made aware of these entries until he was moved to the new dormitory. The specific policy being challenged is applicable only to Baker Correctional Institution and has not been promulgated as a rule in accordance with the requirements of Section 120.54, Florida Statutes.
The Issue At issue is whether respondent committed the offenses alleged in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government 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 Section 20.165, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Phillip Bantu Gilbert, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0460883. Respondent's licensure status On May 13, 1992, respondent applied to the Department for licensure as a real estate broker. As part of that application, respondent was required to make an election with regard to whether, upon successful completion of the examination, he would be actively employed or preferred an inactive broker's license. Specifically, the application provided: EMPLOYMENT INFORMATION You must select one of the following options for your first license which automatically will be mailed as notice of passing the exam- ination, together with your examination score. The receipt of either license will establish your broker's status. You may immediately file a request to change employer, register as a real estate broker (sole proprietorship), or become a broker-member of a corporation or partnership, at no additional charge. [ ] I will continue my present employment as a broker-salesman. (ATTACH COPY of your current salesman's license or Validated Confirmation Slip.) [x] I wish to be issued an inactive broker's license and understand that it may be converted to a broker's or broker-sales- man's license if I file and request same when notified that I have passed the examination. Respondent elected the second option, to be issued an inactive broker's license. Respondent successfully completed the examination, and on December 21, 1992, was issued his broker license. Such licenses do not carry any legend reflecting active or inactive status; however, due to his election, which evidenced no current real estate employment or place of business, respondent's status was inactive. Following licensure, respondent began to actively operate as a broker, under the name Bantu Enterprises, at 150 Northwest 56th Street, Miami Shores, Florida. Bantu Enterprises, of which respondent is president and founder, is a Florida corporation, and has never been registered as a trade name or real estate brokerage company by the Department. Respondent's license continued in a voluntary inactive status until, following the investigation hereinafter discussed, he applied to the Department for active status. That application, filed March 1, 1994, identified the name and business address of the owner/broker as Phillip B. Gilbert, 150 Northwest 56 Street, Miami, Florida. The Morong transaction On or about June 14, 1993, Chester Morong and Lynette Morong, his wife, submitted an offer to purchase certain real property located at 700 Northwest 55 Avenue, Plantation, Florida, to the Department of Veterans Affairs (VA) for $177,250.00. Such offer was submitted through Bantu Enterprises, with Phillip B. Gilbert noted as the principal broker and sales person, and reflected an earnest money deposit of $1,500.00 being held by the broker. On June 30, 1993, respondent was advised by the VA that the Morong offer had been accepted for processing, and respondent was accorded three business days to present the Morongs to an authorized VA lender to process their offer. Respondent apparently complied with such requirement, and on August 4, 1993, the VA advised respondent that the Morongs had been approved to purchase the property and a closing date of August 13, 1993, was established. On August 9, 1993, the VA sent by overnight express to respondent, as the broker of record, the closing package. Under established procedure, respondent was to close the transaction, and then return to the VA, within 10 days of the closing, the closing package, the proceeds due the VA, and a recording receipt for any legal instruments that were recorded. On August 13, 1993, Mr. Morong requested of respondent that the closing be postponed for fourteen days. According to Mr. Morong, a hurricane had destroyed his parents' home in Trinidad the previous weekend, and he had been required to use the closing monies, among others, to provide them assistance. Respondent assured Mr. Morong that the time for closing could be extended; and on some date between August 13 and August 16, 1993, secured the Morongs' signatures to the closing documents in anticipation of closing. Among those documents was a mortgage deed to secure the repayment of the VA financing and a mortgage note in the sum of $175,750.00. On August 16, 1993, the VA contacted respondent's office and advised that there might be a title problem, and that the closing might have to be postponed to see if the problem could be resolved. According to the VA, respondent's office manager informed them that Mr. Gilbert told her to inform the VA that the sale had closed. In fact, the sale had not closed at that time. At or about 2:30 a.m., August 17, 1993, respondent telephoned Mr. Morong and stated he had received a call from the VA and that if he didn't have the closing costs the next day he (respondent) would quit claim the property to another person. On August 17, 1993, Mr. Morong telephoned the VA and learned that there might be a title problem with the property, associated with a bankruptcy. Acting on that advice, Mr. Morong delivered a letter to Mr. Gilbert that same day, which letter stated: Without prejudice I would like to formally withdraw my offer to close on the purchase of the above captioned property. This decision though saddening for us . . . was arrived at due to the attending problems with the property. I would like the urgent return of my $1500 earnest money. I also would like to bid on another property. On August 19, 1993, Mr. Morong was given a check, post-dated for August 21, 1993, on the account of Bantu Enterprises, in the sum of $1,500.00, for return of his escrow deposit. That check was subsequently negotiated and paid. Respondent did not advise the VA of Mr. Morong's withdrawal of the offer to purchase or his return of Mr. Morong's earnest money deposit. Had he done so, the closing on this property would not have occurred and the VA would have offered the property to the next highest bidder (offeror). Under such circumstances, respondent would have lost the six percent commission he anticipated from the transaction. Subsequent to Mr. Morong's withdrawal of his offer to purchase on August 17, 1993, respondent proceeded to close on the property, without the Morongs' consent. In so doing, respondent caused the special warranty deed from the VA to the Morongs, as well as the mortgage previously executed by the Morongs, to be recorded in the public records of Broward County, Florida. Thereafter, on August 26, 1993, respondent caused a quit claim deed, dated August 18, 1993, between Chester Morong and Lynette Morong, his wife, as grantors and Beverly A. Henry, a single woman, as grantee, to be recorded in the public records. That quit claim deed, prepared by respondent's brokerage, is a fraudulent document since the signatures affixed to the quit claim deed purporting to be those of Mr. and Mrs. Morong are forgeries, as the Morongs never executed any such document. On August 23, 1993, the VA received the closing package back from respondent, along with the settlement proceeds. Facially, the documents reflected that the sale had closed on August 13, 1993, and that Chester Morong and Lynette Morong, his wife, were the owners of the property. No reference was made to the transfer to Ms. Henry, and no request was made, at the time, for an assumption of mortgage package. The investigation of respondent's records and escrow accounts Following a complaint from Mr. Morong, after he discovered that the closing had occurred as heretofore discussed, a Department investigator commenced an audit of respondent's business practices. Among the items addressed by the investigator with respondent on his initial visit was a request to audit respondent's account to ascertain when Mr. Morong's $1,500.00 deposit was placed in escrow, and into what escrow account it was placed. To adequately conduct such an audit, the investigator would need respondent's bank deposit slips, monthly bank statements, case files and broker's monthly reconciliations. Respondent advised the investigator that he did not have the documents available at the time. Subsequently, on February 16, 1994, the investigator served a subpoena on respondent to compel production of the documents. That subpoena commanded that respondent produce on February 21, 1994, the following: For the period Jan. 1, 1993 to present, all sale/purchase agreements, contracts, leasing or rental agreements either closed, pending or null and void including monthly bank state- ments and cancelled checks plus monthly reconciliations of all escrow accounts and bank deposit slips. In response to the subpoena, respondent produced some bank statements and cancelled checks on an account for Bantu Enterprises, but no banking information for accounts in his name. As for the documents produced, they were fragmentary and not inclusive of the audit period, no contracts or case files were produced, and no written monthly reconciliations, as required by Rule 61J2-14.012, Florida Administrative Code, were produced. Consequently, a complete picture of respondent's activities was not presented, and the audit could not be completed. As of the date of hearing, respondent had still failed to produce the documentation requested by the subpoena, and the audit could not be completed.
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 Counts I and III through VII of the administrative complaint, and which dismisses Count II of the administrative complaint. As a penalty for such violations, respondent's broker's license should be revoked. DONE AND ENTERED this 30th day of May 1996 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK, 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 May 1996.
