Findings Of Fact Petitioner, Jerry R. Erickson, who is now thirty years old, made application on May 29, 1986 for licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld". Petitioner answered in the affirmative and gave the following response: February 10, 1984 incurred several felonies, all drug and alcohol related, there were several incidents in my past that were drug and alcohol related. (See attached letters). A subsequent background check by respondent revealed the following arrests and/or convictions: 1980 - Arrest for driving while under the influence. 1982 - Arrest for trespassing after warning and assault and battery. 1982 - Arrest and conviction for driving while under the influence. 1983 - Disorderly intoxication ar- rest. 1984 - Arrest and conviction for armed burglary, kidnap, false imprisonment, aggravated assault, and burglary to a business. Although arrested on the above five occasions, he was convicted only twice. For the most recent conviction in 1984, Erickson was allowed to enter into a negotiated plea whereby he received 455 days incarceration, two years community control, and ten years probation, each to run consecutively. 1/ Because of his record, petitioner's application for licensure was denied by respondent on September 15, 1986. Erickson's problems are directly related to alcohol and drug addiction. Its origin began at age thirteen when he was given valium by his parents for hyperactivity. Following this exposure to drugs, Erickson freely admits that he abused alcohol and drugs until early February, 1984. Having taken a large dose of valiums over a 48 hour period, and still not being able to sleep, Erickson entered a drug store on February 9, 1984 and demanded, at gunpoint, an ampule of morphine to help him calm down. For that episode, he was arrested and charged with a number of serious crimes. Apparently recognizing that Erickson's underlying problem of drug and alcohol addiction was the reason for his actions, the State allowed Erickson to enter a negotiated plea if he could master his addiction problem. He has successfully done so and is now under community control until November, 1986. After that, he must serve 10 years probation. In addition, he must receive an annual psychological review during the term of his probation. In addition to his own testimony, a psychiatrist, executive vice- president of a bank, and the chief of the public defender's criminal trial division testified on Erickson's behalf. All were aware of Erickson's background and prior legal problems. Erickson was described as being responsible, mature, reliable and honest. The banker stated he would have no hesitation in using Erickson in a real estate transaction and that Erickson has met all obligations on several loans with the bank. The public defender described Erickson's conduct as "exceptional", and that he is one out of perhaps five hundred clients who has been assigned to community control. All felt Erickson had rehabilitated himself. Erickson desires to become a real estate salesman, and eventually to obtain a broker's license. He is married, has a child, and is employed at a West Palm Beach newspaper. He was most candid and forthright in his testimony and appeared to the undersigned to have rehabilitated himself by reason of good conduct and lapse of time since his 1984 conviction.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That petitioner's application for licensure as by examination as a real estate salesman be GRANTED. DONE AND ORDERED this 31st of October, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1986.
The Issue The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes, and Florida Administrative Code Rule 61J2-2.027(2), and, if so, what discipline should be imposed.
Findings Of Fact Respondent is 58 years old. He is employed full-time as a real estate sales associate. Respondent holds an active real estate sales associate license. His license number is SL706350. The license was issued to Respondent based upon his sworn application for licensure submitted on or about March 14, 2001. Question No. 9 on the license application asked whether Respondent had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if [he] received a withhold of adjudication.” The following explanation is provided as part of the question: This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were 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.” (Emphasis supplied) Immediately following Question No. 9 is the following statement in all capital letters: YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE REVOCATION OF YOUR LICENSE OR THE DENIAL OF A REAL ESTATE LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR THE DIVISION OF REAL ESTATE. Respondent checked the box marked “NO” for Question No. 9 on the application that he submitted. Respondent’s negative answer to Question No. 9 was a material misstatement of his criminal record. On March 27, 1972, Respondent pled guilty to attempted robbery in the third degree in the Erie County Court in New York. The offense was a felony. On May 5, 1972, Respondent was sentenced to five years of probation for that offense. Respondent’s probation was revoked on January 14, 1974, and he was sentenced to “the care and custody of the NY State Narcotic Addiction Control Commission for an indefinite period of 60 months.” The latter sentence ran concurrently with a sentence imposed for another offense, the substance of which is not reflected in the record. On August 3, 1992, the Erie County Court issued a Certificate of Relief From Disabilities to Respondent, which relieved him of “all disabilities and bars to employment, excluding the right to be eligible for public office.” The certificate expressly states that it “shall NOT be deemed nor construed to be a pardon,” and it is limited to the “crime or offense specified [t]herein.” The Certificate of Relief From Disabilities makes no mention of expungement or sealing of the records related to the enumerated offense. The only offense enumerated in the Certificate of Relief From Disabilities is the third degree attempted robbery conviction with a sentence date of May 5, 1972. No other offenses are mentioned. On February 18, 1993, the New York Executive Department, Board of Parole, issued a Certificate of Good Conduct to Respondent. The certificate referenced three offenses: the third degree attempted robbery conviction discussed above; a second degree robbery conviction with a sentence date of May 8, 1975; and a federal distribution of heroine conviction with a sentence date of May 1, 1978. The purpose of the Certificate of Good Conduct was to “remove all legal bars and disabilities to employment, license and privilege except those pertaining to firearms . . . and except the right to be eligible for public office.” The certificate states that it “shall be considered permanent.” The Certificate of Good Conduct makes no mention of expungement or sealing of the records related to the enumerated offenses. Respondent testified that his negative answer to Question No. 9 was based upon his understanding of the legal effect of the Certificate of Relief from Disabilities and the Certificate of Good Conduct. Specifically, Respondent testified that although he understood that the certificates did not “remove” his criminal history or expunge his records, it was his understanding that the certificates provided him a “safe harbor” to answer “no” to Question No. 9 because all legal bars to employment had been removed by the certificates. Respondent’s understanding regarding the legal effect of the certificates and his obligation to disclose his prior offenses based upon the certificates was based, in part, on advice he received from an attorney in New York. Respondent knew that the Department would learn of his criminal history through the background check based upon the fingerprint card that he submitted with his license application, and he credibly testified that he did not intend to mislead the Department regarding his criminal history through his negative answer to Question No. 9. Respondent was unaware at the time he submitted his license application that the Department and/or the Florida Real Estate Commission (Commission) processed applications in which no criminal history was disclosed differently than applications in which a criminal history is disclosed.2 Respondent’s understanding regarding the legal effect of the certificates was erroneous. Respondent acknowledged as much in his testimony at the final hearing (Tr. 54) and in his PRO (at ¶29). The record does not establish precise legal effect of the certificates,3 but it is inferred that the certificates restore the civil rights that Respondent lost due to his felony convictions. It is also inferred that the reason that the Certificate of Good Conduct does not mention Respondent’s misdemeanor offenses (See Endnote 5) even though it was issued after those offenses is because misdemeanor convictions typically do not result is the loss of civil rights as is the case with felony convictions.4 Neither of the certificates expunge or seal any of Respondent’s criminal records and, contrary to his understanding at the time, the certificates did not excuse Respondent from disclosing his criminal offenses in response to Question No. 9 on the license application. The evidence clearly and convincingly establishes that Respondent was convicted of third degree attempted robbery, a felony, in 1972; that the offense was not sealed or expunged; and that Respondent failed to disclose that conviction on his license application when he answered “no” to Question No. 9.5 The evidence does not clearly and convincingly establish that Respondent intentionally misrepresented or fraudulently concealed his criminal history from the Department by answering “no” to Question No. 9.6 To contrary, the evidence establishes that Respondent’s negative answer to Question No. 9 was based upon his good faith, albeit erroneous belief, that he was not required to disclose his prior criminal offenses in light of the Certificate of Relief from Disabilities and/or the Certificate of Good Conduct. It has been 34 years since Respondent’s third degree attempted robbery conviction, which is the basis of the Administrative Complaint. It has been more than 18 years since Respondent’s last criminal offense, which was a misdemeanor petit larceny offense. All of Respondent’s criminal offenses occurred in the state of New York. He has remained out of trouble with the law since he came to Florida in 2000. Respondent has not been the subject of any disciplinary action, other than this proceeding, since receiving his license. Respondent did not present the testimony of any character witnesses, but he credibly testified that he has completely turned his life around since the time of his criminal offenses in New York. Respondent served in the U.S. Air Force Security Service in Viet Nam. He was honorably discharged. Respondent was licensed as a mental health counselor in New York and Virginia prior to coming to Florida and obtaining his real estate sales associate license. Respondent testified that he was required to disclose his criminal background and undergo a background check in order to obtain those licenses; that he did not disclose his criminal background on the license applications based upon his understanding of the certificates described above; that his criminal background was not an issue to the licensing agencies in New York and Virginia, even though it was not disclosed on his license applications; and that this experience (along with the advice he received from the attorney in New York) led him to believe that his criminal records were sealed and need not be disclosed. Respondent offered no evidence to corroborate this self-serving testimony, and it is given very little weight because it is unknown how, if at all, the disclosure requirements and licensure regimes for mental health counselors in New York and Virginia compare with the disclosure requirements and licensure regime for real estate sales associates in Florida.
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 not 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); imposes an administrative fine of $1,000; suspends Respondent’s license for 30 days; places Respondent on probation for one year after the end of the suspension period; and imposes the costs related to the investigation and prosecution of this case, excluding costs associated with an attorney’s time. DONE AND ENTERED this 21st day of December, 2006, 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 21st of December, 2006.
The Issue Whether Respondent is guilty of fraud, misrepresentation or concealment as charged in the Administrative Complaint which initiated this proceeding.
Findings Of Fact Petitioner, the Division of Real Estate in the Department of Business and Professional Regulation is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida under Chapter 455, Florida Statutes, (governing the Department of Business and Professional Regulation) and Chapter 475, Florida Statutes, (governing the practice or real estate brokerage in the State of Florida). Petitioner is also charged with the duty of prosecuting administrative complaints that allege violations of Chapter 61J2, Florida Administrative Code, which constitute the rules and regulations promulgated by the Florida Real Estate Commission to regulate the practice of brokering real estate transactions. Respondent, Edward Gensen, is a licensed real estate broker in the State of Florida under license number 0595539. Mr. Gensen has been licensed in such a capacity at all times material to the Administrative Complaint which initiated this proceeding. Mr. Gensen has also been licensed as a real estate broker in the State of Illinois since 1983 and is an enrolled agent with the Internal Revenue Service. Battery in 1984 On September 18, 1984, Timothy G. Vojak swore out a complaint in the Circuit Court of the Eighteenth Judicial Circuit of the State of Illinois, (the "criminal court"). The complaint accused Mr. Gensen of criminal battery in that "said defendant [Mr. Gensen] without legal justification, intentionally cause[d] bodily harm to Timothy G. Vojak, in that he struck . . . Vojak on the side of his head with his fist." Petitioner's Exhibit No. 4. A certified copy of the criminal complaint shows that a copy of the complaint was delivered to Mr. Gensen the same day that it was executed by the complainant. Mr. Gensen's explanation of the battery charge offered in this license discipline proceeding was that the facts leading to the charge were nothing more than a "traffic argument." (Tr. 13). Mr. Vojak pulled me over and got out of the car . . . I was in the car and got out . . . and he come out of his car and he come up to me and took a swing at me and hit me. * * * I hit him back. (Id.) Apparently, at least the fact that Mr. Gensen hit Mr. Vojak was agreed to by the parties at Mr. Gensen's criminal trial. (See the next paragraph, below.) On October 5, 1984, a criminal sentence form was filed with the Illinois criminal court in Mr. Gensen's case. It indicates that the criminal case of Mr. Gensen had been initiated not by indictment or information (that is, a charging document filed in court by the local prosecuting attorney for the state), as would be expected in the typical criminal case, but by "complaint." (Petitioner's Exhibit No. 4, page 1 of 3.) "[C]omplaint" obviously refers to the complaint filed by Mr. Vojak several weeks earlier. The sentence form also indicates that Mr. Gensen pled "not guilty." Written in the same handwriting as the name "Edward Gensen" in the blank on the form for "Defendant" are the words "STIP TO FACTS." These words are taken to mean that Mr. Gensen reached an agreement with the complainant and the prosecuting attorney as to what the facts were in the case. The sentencing form provides other information about the outcome of the case. It indicates that after the stipulation to the facts, Mr. Gensen was found guilty by the court (as opposed to by a jury). On the form, under the heading "TYPE OF SENTENCE" are a number of blocks to be checked. Among these blocks are: "Periodic Imprisonment," "County Jail," "No credit for good time," "Custody of U.S. Attorney General," and "Illinois Department of Corrections." None of the blocks associated with these "types of sentences," all of which are types of outcomes one would normally associate with a criminal sentence, are checked. Instead, two blocks are checked: "Fined," and "Probation." The "Fined" block shows that Mr. Gensen was fined $55 and assessed $35 in court costs. The "Probation" block is checked as well. But the word "[p]robation" is scratched through. In its place is written the word, "supervision." The criminal sentence form indicates that Mr. Gensen had a defense attorney named "McGrath." The initials of the State's Attorney are shown as "SPW." The sentence form is signed by a judge, whose name appears to be "R.A. McLaren." Finally, the criminal sentence form indicates that Mr. Gensen's "sentence" was stayed until "4/12/85," approximately 6 months after the form was signed by Judge McLaren. Supervision and a Question of Expungement Mr. Gensen completed the period of supervision without incident. But supervision "didn't call for me to do anything." (Tr. 14.) At the time of his trial, Mr. Gensen was told by an attorney unidentified in the record of this license proceeding, that his case "was a minor thing and it was erased and didn't exist afterward. After the supervision they take it away or something. He said you wouldn't have any record." (Tr. 19.) Mr. Gensen also had a vague recollection of Judge McLaren telling him that any record of his guilt would be expunged if he successfully completed the period of supervision. "If I remember right, it was something like, 'You have the conviction. You go on supervision and then everything is taken away.'" (Tr. 19.) Whatever Mr. Gensen may have been told at the time of his trial and sentencing, the record of his battery conviction in 1984 was not expunged. There was, moreover, no evidence offered in this proceeding that the court's maintenance of the records of his conviction for battery and "sentence" of a fine, assessment of court costs and supervision was a clerical error or in error in any other way. Application for a Florida Real Estate Broker's License By licensure application signed by Respondent on February 5, 1996, Respondent applied to become licensed as a real estate broker in the State of Florida. On the application for his real estate license, Respondent was asked to indicate whether he had 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 violation), without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned. . . you are responsible for verifying the expungement or sealing prior to answering "NO." If you do not fully understand this question, consult with an attorney or the Division of Real Estate. (Petitioner's Ex. No. 2, pg. 2, question 9) (Emphasis added.)In response to this question, Respondent checked the "No" box. (Id.) Respondent swore that all answers and information contained in his application were true and complete. Respondent's signature was duly notarized. Respondent knew that his application for licensure had to be approved by the Florida Real Estate Commission. Respondent did not contact the Illinois court system to determine whether the court maintained records of the judge's finding that he was guilty or the sentence (payment of a fine, assessment of court costs and supervision). Respondent did not consult a lawyer about how to answer Question 9 on his real estate application. Respondent did not consult with the Division of Real Estate to determine whether he should mention the Illinois finding of guilt, probation and payment of fine, on the application for licensure. On or about March 18, 1996, in reliance upon Respondent's application, the State of Florida issued Respondent a license as a real estate broker. Other Applications; Other Convictions In addition to his licensure as a real estate broker in Florida, Mr. Gensen is also licensed as a real estate salesman. When he applied for his real estate salesman's license, he answered no to the question about whether he had ever been convicted of a crime or had a criminal record. Mr. Gensen testified that the 1984 battery in Illinois was not the only conviction in his past. "There was [another] one thirty-five or forty years ago. I can't remember the exact date. [It was also] a traffic argument." (Tr. 14.) No Other Administrative Complaints Mr. Gensen, in his several capacities as a licensee or holder of a privilege from the states of Illinois and Florida and the federal government, has never been disciplined or had to answer to an administrative complaint with the exception of one time: this case initiated by the Administrative Complaint. The Administrative Complaint The Administrative Complaint in this case seeks action against Mr. Gensen's real estate broker's license only. It does not ask the Florida Real Estate Commission or any other authority to take action against his salesman's license. Likewise, the complaint is based solely on the 1984 battery. There is no mention or allegation in the complaint relating to another conviction thirty-five or forty years ago. Consistent with the findings of fact in paragraphs 23 and 24, above, the Administrative Complaint charges Mr. Gensen with only one count: "the Respondent has obtained a license [the real estate broker's license] by means of fraud, misrepresentation, or concealment in violation of [s.] 475.25(1)(m), Florida Statutes." Administrative Complaint, p. 2. Fraud, Misrepresentation and Concealment At the close of the presentation of evidence in this case, Mr. Gensen made a lengthy statement. He admitted that he had been "guilty of making a mistake on my application. I failed to put down that I was found guilty of a charge of battery and fined . . . and given supervision . . . " . (Tr. 22.) Mr. Gensen then reviewed the numerous times in Florida, Illinois and with the federal government that he had applied for licensure or some sort of privilege in which the applications asked whether he had ever been convicted of a crime or had a criminal record. "In every instance in all these years I have put down that I had no criminal record. The battery charge never entered my mind when I filled out the application[s]." (Tr. 23.) Mr. Gensen also pointed out that revoking his license would cause him little if any financial loss because he has not been very active as a real estate broker in the last four years. Mr. Gensen closed with the following statement, So why am I here? Because I did not knowingly commit fraud, misrepresentation and concealment. I'm here because I try to be honest and I keep my word all my life and I did not cheat anybody. I make mistakes, but I'm not a dishonest person and I don't want to be found guilty of doing something dishonest." (Tr. 23.)
Recommendation Accordingly, it is recommended that the Florida Real Estate Commission enter a final order finding Edward Gensen to have violated Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint which initiated this proceeding. It is further recommended that his real estate broker's license be suspended for three months to be followed by nine months of probation, by the end of which he must have informed all licensing authorities of his criminal conviction for battery in 1984 and any other criminal conviction prior to the date he applied for his real estate broker's license. DONE AND ENTERED this 4th day of August, 1998, in Tallahassee, Leon County, Florida. DAVID M. MALONEY 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 4th day of August, 1998. COPIES FURNISHED: Christine M. Ryall, Senior Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire Law Office of Gillis & Wilsen 1415 East Robinson Street, Suite B Orlando, Florida 32801 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice real estate and for regulating licensees on behalf of the state. Respondent is a licensed real estate sales person under license number 0466167. Respondent's real estate license was invalid during the dates at issue in this proceeding. The license expired on September 30, 1993, and was activated on February 1, 1994. The last license issued to Respondent was issued as a voluntary inactive sales person at 171C Springwood Boulevard, Longwood, Florida. On October 28, 1993, Mr. Frank Canty, terminated Respondent from employment at Frank G. Canty Realty ("Canty"). Mr. Canty notified Respondent of the termination by telephone on or about the same day and immediately filed the form required to notify the Florida Real Estate Commission (the "Commission") of Respondent's change in status. 2/ Mr. Robert Sirianni and Respondent are long time friends. Mr. Sirianni is the broker and owner for Bay Hill Realty, Inc ("Bay Hill"). Mr. Sirianni hired Respondent as a real estate sales person for Bay Hill on November 22, 1993. Mr. Sirianni signed the completed form required to notify the Commission that Respondent had placed his license with Bay Hill. Mr. Sirianni gave the completed form to Respondent to hand deliver to the Commission. However, Respondent failed to deliver the form to the Commission. On November 22, 1993, Respondent showed a condominium to prospective buyers. Respondent represented that he was an employee of Canty. Respondent delivered a written offer of $36,000 to Watson Realty Corporation ("Watson"), the listing office. Respondent used his Canty business card in the transaction. A representative of Watson contacted Mr. Canty to discuss some problems in the transaction. Mr. Canty informed the representative that Respondent was terminated from Canty on October 28, 1993. Watson caused a new contract to be executed between the buyers and sellers showing Watson Realty as the listing and selling office. The transaction closed on the new contract. On December 13, 1993, Mr. Sirianni faxed a memorandum to Watson claiming the sales commission purportedly earned by Respondent. Mr. Sirianni withdrew the demand after learning of the facts and circumstances surrounding the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order: finding Respondent guilty of violating Sections 475.25(1)(b), 475.25(1)(e), and 475.42(1)(b); authorizing the issuance of a written reprimand; placing Respondent on probation for one year; and imposing a fine of $1,000 to be paid in accordance with this Recommended Order. RECOMMENDED this 9th day of May, 1995, in Tallahassee, Florida. DANIEL MANRY 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 May 1995.
The Issue Should Petitioner, Darius Jermaine Santiago's, application for a real estate sales associate license be granted.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: Petitioner is an applicant for licensure as a real estate sales associate. He is 36 years old and has lived in Florida since June 2004. He works in a Subway restaurant. Respondent is the state agency responsible for licensing real estate professionals in the State of Florida and has the statutory authority to approve or deny Petitioner's application. Petitioner’s application discloses the following criminal offenses: Indecent exposure [Exposed sexual organ to law enforcement officer] Volusia County, Florida Date of offense 7/28/2005 Pled no contest; adjudication withheld, 6 mos. probation, fined. Possession of cannabis, possession of narcotic paraphernalia, [Possession of cannabis not more than 20 grams] Volusia County, Florida Date of offense 2/9/2009 Completed a “Level I” program, charge Nolle Prosequi Trespassing of conveyance [Accused of entering a truck without permission] Volusia County, Florida Date of offense 5/12/2009 In February, 2010, Petitioner pled nolo contendere to the charge referenced in 3c. He has performed 15 of 25 hours of community service imposed by the Court. On October 2, 2009, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are: C. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181, F.S. Applicant has not had sufficient lapse of time, without government supervision, to establish rehabilitation by being crime free. M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Real Estate, Florida Real Estate Commission, enter a final order denying Petitioner, Darius Jermaine Santiago’s application for licensure. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2010. COPIES FURNISHED: Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Darius Jermaine Santiago 1534 Dunlap Drive Deltona, Florida 32725 Thomas W. O’Bryant Jr., Director Division of Real Estate 400 West Robinson Street, N801 Orlando, Florida 32801 Roger P. Enzor, Chair Real Estate Commission 400 W. Robinson Street, N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue presented for decision herein is whether or not Petitioner meets the qualifications for licensure as a real estate salesman.
Findings Of Fact On June 13, 1988, Petitioner filed an application for licensure as a real estate salesman. In responding to question 14(a) of the application, Petitioner answered that his license, as a real estate broker, had been revoked for non-payment of an administrative fine. (Respondent's exhibit 1). Petitioner attached to his application a copy of a transcript of an administrative hearing held in DOAH Case No. 84-0981. A final order was entered in that case based on a stipulation wherein Petitioner agreed to pay an administrative fine of $500 within 30 days of entry of the final order. Petitioner has not paid the administrative fine as he agreed. Petitioner admitted during hearing that he had not paid the fine and made an offer during the hearing herein to pay that fine in as much as he failed to pay it earlier since he did not have the wherewithal to pay the fine. Petitioner is now employed as a sales representative with Metropolitan Life Insurance Company. 1/ Petitioner's license as a real estate broker was revoked by Respondent based on his failure to pay an administrative fine imposed in an earlier case (DOAH Case No. 86-145, Respondent's exhibit 2).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: Petitioner's application for licensure as a real estate salesman be DENIED. RECOMMENDED in Tallahassee, Leon County, Florida, this of 27th day of January, 1989. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1989.
Findings Of Fact On November 2, 1977, Marin completed the application for registration as a real estate salesman and forwarded it to the FREC. The application was received December 27, 1977. The application contains the following question. 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned, or parolled? Marin answered the question with the word "No". However, the evidence shows that Marin was arrested December 31, 1974, with the crime of grand larceny which charge was reduced to petty larceny. It was Marin's understanding that his arrest record had been expunged by an attorney hired for that purpose when, in fact, it had not. It was for this reason that Marin answered the foregoing question in the negative.
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 =================================================================
Findings Of Fact Respondent, Robert R. Hambley, is now and was at all times material hereto, a licensed real estate broker in Florida having been issued license number 0200892. The last license issued was as a broker, c/o Real Pro Associates, Inc., 10863 74th Avenue, North, Seminole, Florida 35542. During times material, Respondent was an officer of and qualifying broker for Real Pro Associates, Inc. (Real Pro). During 1987, it came to Petitioner's attention that Respondent was paying commissions to unlicensed salesmen through Real Pro Associates; that Respondent was not placing escrow and trust monies into escrow or other satisfactory depository accounts and that Respondent was failing to disclose to the purchasers, the Federal Housing Authority and the title and trust companies that escrow deposits were not made as set forth in sales contracts as required. Based on that information, Petitioner's Investigator, Edward J. P. Shea served a subpoena upon Stewart Fidelity Title Company and obtained the documentation of the last five sales transactions by Paul George (George), the owner of Real Pro. Stewart Fidelity Title Company also provided Investigator Shea with the sales contracts consummated by Paul George and the following sellers: William G. Summer, Harold G. Johnson, Windy J. Domke, Charles Stephens, Jr., and Ernest G. Sanchez. George is not licensed by Petitioner as a real estate salesman. Each of the subpoenaed contracts represented that a $500 escrow deposit had been received and that the deposits were being held in Real Pro's escrow account. Real Pro's bank records revealed that no such deposits had either been received or placed in Real Pro's escrow account. At the closing of each transaction, Respondent did not inform or otherwise disclose to Stewart Fidelity Title Company, which handled the closing for each transaction, that the stated $500 escrow deposits were never placed into an escrow account as stated in the purchase and sales contracts. Likewise, Respondent did not advise the Federal Housing Authority or Stewart Fidelity Company that Paul George was receiving more than 100% financing for each of the properties involved in the above-referred transactions. This information is significant because it alerts the lender that the purchaser has no equity position in the purchase in the form of a downpayment. Of five transactions involving Paul George as buyer and seller, William G. Sumner, Harold G. Johnson, Charles and Helen Stephens, Ernest and Jane Sanchez, George received commissions in the amounts of $9,900, $7,900, $8,804 and $1,900.38.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that Petitioner enter a Final Order: Imposing an administrative fine against Respondent in the amount of $1,000 payable to Petitioner within thirty days of entry of the Final Order herein, and Placing Respondent's license number 0200892 on probation for a period of one (1) year. DONE and ENTERED this 5th day of July, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1989. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate Department of Professional Regulation 400 West Robinson Street Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street, Ste. 60 Tallahassee, Florida 32399-0729 Arthur R. Shell, Jr. Senior Attorney Department of Professional Regulation -- Legal Division of Real Estate 400 West Robinson Street Orlando, Florida 32802 Robert R. Hambley, Pro Se 8404 Annwood Road Largo, Florida 34647 =================================================================
Findings Of Fact The Respondent is a licensed real estate salesman, having been issued license number 0073256 authorizing his practice in such a capacity in the State of Florida. The Petitioner is an agency of the State of Florida charged with enforcing the licensure and practice standards embodied in Chapter 475, Florida Statutes, for realtors in the State of Florida. From approximately April 16, 1977, through November 17, 1977, the Respondent, acting in the capacity of a real estate salesman, was employed by a broker by the name of Irwin Kane and Wintex Realty Corporation of Miami, Florida. That entity with Broker Kane was involved in the advertisement, promotion and sale of parcels of unimproved land in west Texas. The Respondent's duties involved making long-distance telephone calls to prospective purchasers of that land (in Cochran County, Texas), attempting to induce them to buy one or more parcels. In the course of this telephone sales campaign, in which the Respondent participated with approximately 20 salesmen making such phone calls, the Respondent used a script prepared for him by Irwin Kane, his employing broker. The script, in general, extolled the attributes of the unimproved property in an arid region of west Texas, representing that the land possessed favorable climatic conditions, water supply and soil conditions for agricultural purposes and was near property in which oil companies were interested. The Respondent contacted a potential buyer by phone who lived in Wisconsin and attempted to persuade the buyer to purchase a parcel of the property through use of the prepared "script" given him by his broker. That potential customer apparently became suspicious of the sales method, manner or assurances given by phone and ultimately was instrumental, along with the United State Attorney, in the filing of an indictment in the United States District Court for the Eastern District of Wisconsin, charging the Respondent (along with his broker, principals of the corporation and other salesmen) with the use of wire communication in furtherance of a scheme to defraud potential purchasers of real estate in violation of Title 18, United States Code, Section 1343. In that proceeding, the Respondent initially professed his lack of knowledge of the truth or falsity of the representations made in the prepared script his broker gave him and required him to use concerning the attributes of the west Texas land involved. Due in part to a dearth of financial resources to devote to litigation, the Respondent ultimately pled nolo contendere on November 7, 1978, to the charge involving using wire communication in a scheme to defraud. He was ultimately found guilty and was placed on probation for three years, with imposition of a sentence of imprisonment being suspended by the court. The Respondent had no part in the preparation of any written materials or "script" which he employed in making the telephone conversation and representations describing the supposed attributes of the property he was attempting to market on behalf of his employer, Broker Irwin Kane and Wintex Realty Corporation. That script was prepared by his broker or others and the Respondent read or consulted from it as he was communicating with prospective purchasers, but had no actual knowledge of its truthfulness or falsity with regard to the representations contained therein. He was shown to have made no representation or verbal communication which he knew to be false when he made it. The Respondent has been the subject of a disciplinary proceeding involving the same factual transaction in the past which culminated in a final order dismissing that administrative complaint. 1/
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law and the evidence in the record, it is RECOMMENDED: That the Respondent, Ed Rich, be found guilty of a violation of Section 475.25(i)(f), Florida Statutes, and that the penalty of a two (2) year suspension of licensure be imposed. DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida. P. MICHAEL RUFF 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 31st day of October, 1983. COPIES FURNISHED: Joel S. Fass, Esquire 626 Northeast 124th Street North Miami, Florida 33161 Mr. Ed Rich 1950 South Ocean Drive Hallendale, Florida 33009 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
