The Issue Whether Respondent is guilty of having obtained a real estate license by fraud, misrepresentation, or concealment in violation of Subsection 475.25(1)(m), Florida Statutes (2004). Whether Respondent is guilty of failure to comply with Florida Administrative Code Rule 61J2-2.027(2), and, therefore, is in violation of Subsection 475.25(1)(e), Florida Statutes (2004).
Findings Of Fact Petitioner is the state agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Section 20.165 and Chapters 120, 455, and 475, Florida Statutes (2004). At all times material, Respondent was a licensed Florida real estate sales associate, issued license number 3019284 in accordance with Chapter 475, Florida Statutes (2004). Petitioner has jurisdiction over disciplinary proceedings for the Florida Real Estate Commission (Commission). Petitioner is authorized to prosecute administrative complaints against licensees within the Commission's jurisdiction. On or about August 6, 2001, Respondent submitted to Petitioner an application for licensure as a real estate salesperson. Respondent signed a sworn affidavit on the application which indicated that Respondent carefully read the application, answers, and the attached statements, if any, and that all such answers and statements were true, correct, and complete to his knowledge without any evasions or mental reservations. Question 9 on the application asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no Contest), even if adjudication was withheld: This question applies to a violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent marked the "Yes" box on the application in response to this question and provided insufficient or no explanation for the incidents in his criminal history. Respondent signed the "Affidavit of Applicant." Respondent's signature was duly notarized, and the application was submitted. Relying on Respondent's incomplete representations, Petitioner issued Respondent a Florida real estate salesperson's license. Petitioner subsequently performed a background check and discovered the following: In 1998, Respondent was adjudicated guilty of DUI. In 1987, Respondent was adjudicated guilty of possession of a controlled substance. In 1986, Respondent was adjudicated guilty of driving under the influence of liquor. In 1985, Respondent was adjudicated guilty of driving a motor vehicle while his license was suspended. In 1985, Respondent was adjudicated guilty of simple assault and battery. Respondent failed to include the above-mentioned adjudications on his application for licensure. Petitioner's Exhibits 2, 3, 4, 5, and 6 are copies of court documents demonstrating that Respondent was adjudicated guilty in each unreported offense. Respondent testified that he failed to report the adjudications until August 20, 2003. However, Respondent's reporting of the adjudications occurred after Petitioner discovered them and prompted Respondent to explain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order declaring Respondent has been found guilty of violating Subsection 475.25(1)(m), Florida Statutes (2004), and Florida Administrative Code Rule 61J2-2.027(2), and, therefore, Subsection 475.25(1)(c), Florida Statutes, as charged in the Administrative Complaint, and suspending Respondent's license until June 30, 2005, and requiring that Respondent pay a $1,000 fine. DONE AND ENTERED this 1st day of June, 2005, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER 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 1st day of June, 2005. COPIES FURNISHED: James P. Harwood, Esquire Department of Business and Professional Regulation Hurston Building North Tower Suite 801N 400 West Robinson Street Orlando, Florida 32801 Michael G. Nichola, Esquire 800 North Ferncreek Avenue Orlando, Florida 32803 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802, North Orlando, Florida 32801
The Issue By Administrative Complaint dated February 20, 1991 and filed with the Division of Administrative Hearings on April 23, 1991, the Department of Professional Regulation, Division of Real Estate, alleged that Respondent had obtained a real estate license by means of fraud in that Respondent had a prior criminal charge and 1976 conviction in New Jersey and had not disclosed same in his July 30, 1990 application for licensure as a real estate salesman, contrary to and in violation of Subsection 475.25(1)(m) F.S.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints against real estate licensees pursuant to the laws of the state of Florida, in particular Section 20.30 F.S. and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate broker in the state of Florida, having been issued license number 0566757 in accordance with Chapter 475, F.S. The last license issued was as a nonactive salesman, in care of 380 Mercers Fernery Road, DeLand, Florida 32720. On his July 30, 1990 application, Respondent made a sworn application for licensure as a real estate salesman with the Petitioner. Question No. 7 of the July 30 application read, in pertinent part, as follows: 7. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? Under oath, Respondent answered "no" to the foregoing Question No. 7. Thereafter, Petitioner based this instant prosecution on a series of loose pages which purported to be a report from the U.S. Department of Justice, Federal Bureau of Investigation (Petitioner's Exhibit B). This item is not a business record of the Petitioner, and Petitioner has shown no reason this printed hearsay should be admitted and considered. Consequently, it has not been admitted or considered. Respondent was interviewed by Petitioner's investigator. The investigator, Mr. Miller, testified concerning his interview of Respondent, but nothing in their conversation constituted an "admission of a party opponent." Nor was anything said in that conversation sufficient to supplement or explain any other testimony or exhibit. See, Section 120.58(1) F.S. Likewise, the conversation did not even support the allegations of the Administrative Complaint. Respondent's testimony at formal hearing was disjointed and inconclusive but to the general effect that at some time he had been arrested in New Jersey in connection with a burglary of his dwelling and a subsequent police search thereof which produced a cache of marijuana. He denied telling a deliberate lie on his real estate application and stated he simply could not recall anything further about the New Jersey incident which he described.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter a Final Order dismissing with prejudice the Administrative Complaint. DONE and ENTERED this 27th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 27th day of June, 1990.
Findings Of Fact On September 21, 1979, the Petitioner completed his application for registration as a real estate salesman. The application was received by the Board on September 23, 1979. 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 paroled? Petitioner's arrest record reflects that he was involved in two incidents with the law. The first occurred on April 25, 1975, when he was arrested on two charges, robbery of a business and assault with intent to commit a felony. The second incident occurred on December 6, 1977, and resulted in arrests for amphetamine possession, resisting arrest with violence, criminal mischief, aggravated assault and possession of a concealed firearm. The second incident resulted from a domestic dispute between Petitioner and his former wife. No indictment was returned or information filed as to the arrests which resulted from the April 25, 1975, incident. The December 6, 1977, incident resulted in a conviction on the resisting arrest charge. No indictment was returned or information filed on the remaining charges. In his application, Petitioner responded to question six (6), as set forth above, by stating that he was involved in two criminal episodes. However, as to the second set of charges, Petitioner failed to fully state those offenses which he had been arrested for or charged with. It was Petitioner's understanding that the arrests which did not result in charges being filed were not required to he listed. Petitioner reached this conclusion after consulting a real estate instructor at the real estate school he attended in preparation for the exam. Additionally, Petitioner was confused regarding the legal status of the second set of charges. Due to the above circumstances, Petitioner unintentionally failed to fully disclose his prior arrest record. The fact that his arrests for the 1975 incident were fully disclosed while the 1977 arrests were not, supports this finding in that the disclosed 1975 arrests involved potentially more serious charges. Petitioner has not been involved with the law since the 1977 incident, has since remarried and as evidenced by character letters and testimony, presently holds and has held two responsible jobs in the Orlando area. (Petitioner Exhibit 1-4)
Recommendation It is, therefore RECOMMENDED: That Petitioner be given leave to immediately file a new application showing that he meets the qualifications for registration as a real estate salesman. DONE and ORDERED this 28th day of May, 1980, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Randy Schwartz, Esquire Assistant Attorney General The Capitol Tallahassee, Florida 32301 Ken Oertel, Esquire General Counsel Department of professional Regulation-Legal Section 2009 Apalachee Parkway Tallahassee, Florida 32301 William M. Stern, Esquire SHADES & STERN, P.A. Suite 510, 151 Wymore Road Altamonte Springs, Florida 32701 C. B. Stafford, Executive Director Florida Board of Real Estate 400 West Robinson Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact At all times relevant hereto, respondent, Larry C. Abramson, held real estate salesman license number 00400601 issued by petitioner, Department of Professional Regulation, Division of Real Estate. He currently resides at 830 Southeast Fifth Terrace, Pompano Beach, Florida. On or about July 19, 1984, respondent entered into a negotiated plea of guilty to a one-count information charging a conspiracy to commit securities fraud and mail fraud arising from an insider trading scheme in violation of Title 18, United States Code, Section 371. A violation of the foregoing section carries a maximum sentence of five years and a $10,000 fine. When the violation herein occurred, Abramson was employed as a plant superintendent and manufacturing supervisory staff member for a New York financial printing concern. Documentation received in evidence concerning the charge are (a) a letter of June 15, 1984 executed by respondent and the prosecuting attorney outlining the nature of the plea and Abramson's requirement to fully cooperate with the government, (b) a news release issued by the United States Attorney outlining the guilty plea, (c) a certified copy of Abramson's docket sheet in the U. S. District Court in New York City, (d) a copy of the information filed against respondent, and (e) a certified copy of respondent's waiver of indictment and consent to information. However, respondent has not yet been sentenced by the court, and there is no evidence of record that the plea of guilty has been accepted by the court.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the administrative complaint be DISMISSED with prejudice. DONE and ORDERED this 28th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1985.
The Issue Whether Petitioner should be disqualified from taking the real estate salesman license examination based on his alleged failure to disclose on his licensing application a prior arrest and conviction for possession of marijuana.
Findings Of Fact On December 19, 1980, Schwartz filed with the Board his application for licensure as a real estate salesman. In answer to the application's Question No. 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 paroled?" (R-1), Schwartz answered, under oath, "Yes." If an applicant answers "Yes", the application asks for details, including the outcome. Schwartz responded: 2.28.69 Possession Marijuana Broward Cty. Sentenced 31 months, Released 4/30/71, No Further Record. (R-1.) He further explained his answer in a letter attached to the application: Sirs: In regard to question #6, I was arrested 2.28.69 in Broward County for possession of a small quantity of marijuana. Sentenced by Judge Robert Tyson in Broward County Criminal Court, Ft. Lauderdale, Fl in June of that year to two years, seven months. Released M.C.R. on 4/30/71. No problems since. H. Jeffrey Schwartz (R-1.) As part of the application, Schwartz executed an affidavit which provides in part: The above named, and undersigned, applicant for licensure as a real estate salesman, upon being duly sworn, deposes and says that he is the person so applying, that he has carefully read the foregoing application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete, as h[is] knowledge information and records permit, without any evasions or mental reservations whatsoever, . . . (R-1.) In answering Question No. 6, Schwartz failed to disclose that he was indicted, arrested, and subsequently convicted of felonious possession of marijuana by the Hustings Court of the City of Richmond, Virginia, on January 31, 1968. Court records indicate that Schwartz, then 19 years old, pled not guilty to the charge; that he was represented by counsel during trial; and that upon hearing the evidence the court found him guilty and returned him to jail pending a pre-sentence-investigation. Subsequently, on March 18, 1968, the court suspended imposition of sentence "during. . .good behavior or until further order of this Court" (R-4), ordered him to pay costs of court, and placed him on supervised probation for an indefinite period. (R-4.) Schwartz then moved to Florida. In February, 1969, he was convicted of felonious possession of marijuana by the Circuit Court of Broward County and sentenced to 31 months at hard labor. On April 30, 1971, after serving his sentence, he was extradited by Virginia authorities on grounds that his Broward County conviction violated the "good behavior" condition of his earlier suspended sentence. After a hearing, at which Schwartz was again represented by counsel, the Hustings Court found he had not violated the provisions of his 1968 suspended sentence, and released him. At that time, Schwartz was 22 years old. (Testimony of Schwartz; R-4.) The Board does not contend that these two prior criminal convictions occurring over 12 years ago render him unqualified for examination and licensure as a real estate salesman. Since that time, Schwartz has been a law-abiding and responsible individual. He has conducted research and performed feasibility studies for various commodity marketing firms, and has gained the respect and confidence of his employers. On March 25, 1981, his civil rights were restored- -except to possess or own a firearm--by order of the Governor and Cabinet of Florida. (Testimony of Schwartz; P-1, P-2, P-3, P-4.) The Board seeks to deny Schwartz's license application based solely on his failure to fully disclose on the application his prior arrest and conviction for marijuana possession in 1968. Schwartz's defense is that he honestly believed the 1968 offense in Virginia was a juvenile matter, not a criminal offense; and that Question No. 6 on the licensing application did not cover juvenile offenses or adjudications. In reply, the Board acknowledges that Question No. 6 is ambiguous with respect to whether information concerning juvenile offenses is required. It follows that, if Schwartz--rightly or wrongly--believed that his 1968 offense was juvenile in nature, his answer to Question No. 6 was not unreasonable and cannot fairly demonstrate lack of honesty, truthfulness, and good character. (Prehearing Stipulation, Acknowledgment of Board Counsel.) Schwartz's testimony that he sincerely believed his 1968 offense to be juvenile in nature, and thus outside the purview of Question No. 6, is rejected as unworthy of belief. His assertion is uncorroboratcd by any independent evidence and is inconsistent with the effect of the following: The Official Court Records. These records, on their face, indicate that Schwartz was charged with and convicted of a criminal offense in 1968. The Procedures Used to Convict Him. At his 1968 trial, he pled not guilty; was represented by defense counsel--who unsuccessfully moved the court to strike the evidence as insufficient to support a judgment of guilty; and, after being found guilty was returned to jail pending pre-sentence investigation. It is unlikely that a 19-year-old could go through such an experience without realizing that he was being charged with and convicted of a crime. His Extradition and Return to the Virginia Court. His subsequent criminal conviction in Florida led to his extradition and return, under guard, to the Richmond Court of Hustings for alleged violation of probation imposed pursuant to his 1968 conviction. After hearing, where he was again represented by counsel, he was reinstated to probation. It is unlikely that Schwartz, then 22 years old, did not understand--by this second encounter with defense counsel and the Court of Hustings--that his 1968 offense was a crime, and that he had been convicted in a criminal, not a juvenile proceeding. Schwartz's Demeanor and Intelligence. Schwartz's demeanor as a witness showed him to be an articulate and intelligent individual. As a marketing analyst, he is required to conduct research and perform studies upon which others can rely. Such work requires rational investigation and analysis. His ostensible conclusion that the 1968 offense was a juvenile proceeding was not the result of diligent investigation and analysis: it represents a departure from the analytical habit he has developed in the working environment. (Testimony of Schwartz; R-4.) Since Schwartz's assertion that he genuinely believed his 1968 conviction was a juvenile matter is rejected, it follows that his answer to Question No. 6 was incomplete and evasive. With regard to the traits of honesty and truthfulness, it places his character in serious question. To the extent the parties' proposed findings of fact are incorporated in this Recommended Order, they are adopted; otherwise, they are rejected as unnecessary to resolution of the issues presented or unsupported by the evidence.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of H. Jeffrey Schwartz for licensure as a real estate salesman be denied, without prejudice to his right to reapply in the future. DONE AND REC0MENDED this 19th day of June, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. 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 19th day of June, 1981.
The Issue Has Mr. Griffith demonstrated that he is honest, truthful, trustworthy, and of good character, and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (Supp. 1980)?
Findings Of Fact On October 29, 1980 Mr. Griffith filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. Question #6 of the application asks: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? Mr. Griffith responded, "See Attached Inclosed (sic) Document". That document was a full and complete pardon which stated: Whereas, At a meeting this day held at the Capitol, in the City of Tallahassee, at which were present His Excellency, HAYDON BURNS Governor of said State, TOM ADAMS, Secretary of State, EARL FAIRCLOTH, Attorney General, Comptroller, and DOYLE CONNER Commissioner of Agriculture, of said State, who under the Constitution of said State, have full power to remit fines and forfeitures, commute punishments, and grant pardons after convictions, it was determined that CHARLES B. GRIFFITH, also known as CHARLES BAILEY GRIFFIS, who was convicted in the Criminal Court of Record, Duval County, Florida, February Term 1943, of Breaking and Entering and Petit Larceny (2 cases) and Breaking and Entering and Grand Larceny (2 cases), and sentenced to a total of 8 years in the State Prison, and who was convicted at the August 1951 Term of said Court of the offense of Larceny of Motor Vehicle and sentenced to a term of 2 years in the State Prison, should now, upon showing made, be granted a pardon; it being shown to the Board that he is living in a law abiding manner, and that the Florida Parole Commission recommended that he be granted a pardon. Therefore, Be it Known, That the said CHARLES B. GRIFFITH, also known as CHARLES BAILEY GRIFFIS, be, and he is hereby granted a full and complete pardon on the above offenses, thereby restoring to him full and complete civil rights. In Testimony Thereof, We have at the Capitol in Tallahassee, hereunto set our hands, this 23rd day of June, A.D., 1966. [signatures] Mr. Griffith was convicted of the crimes indicated on the pardon and he was pardoned as indicated by the document he submitted in support of his application. At the time Mr. Griffith answered question #6 he did not remember being arrested on July 25, 1971 for disorderly conduct. He also did not remember the disposition of the charge which was a $52.00 fine for violating a Jacksonville, Florida city ordinance. As Mr. Griffith now remembers the incident which resulted in his fine, it arose out of a family argument. His memory is corroborated by a notation made on the docket sheet concerning his arrest. Mr. Griffith's testimony about forgetting his arrest for disorderly conduct is accepted as credible. Mr. Griffith now owns a motel called the "Seabreeze Court" in St. Augustine, Florida. As the owner-operator of the motel he is entrusted with responsibility for the possessions of his motel guests. There has never been a complaint about lost or stolen property from either guests in his present motel or from guests in the motel which he formerly owned. Mr. Griffith has been engaged in numerous real estate transactions on his own behalf during the last two decades. In addition to his present motel he previously owned another motel and has owned an apartment building complex. In all of his transactions he has kept his commitments. He has never been in default on any loan or obligation and he has never had suit filed against him. In order to protect his family (particularly his wife) and friends from knowledge about his old convictions, which knowledge could come from cross- examination at the final hearing, Mr. Griffith did not request them to appear and give testimony about his good character. By letter dated January 22, 1981 the Board stated its intention to deny Mr. Griffith a real estate license because "the specific reason for the Board's action is based on your answer to question six of the licensing application and your criminal record according to the appropriate law enforcement agency."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Real Estate enter a final order finding Petitioner qualified pursuant to Section 475.17(1), Florida Statutes (Supp. 1980) to take the license examination provided for in Section 475.175, Florida Statutes (1979), to be licensed as a real estate salesperson in the State of Florida. DONE and RECOMMENDED this 10th day of June, 1981, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 10th day of June, 1981. COPIES FURNISHED: Jeffrey B. Marks, Esquire Schneider, Dunay, Ryan & Marks, P.A. American Heritage Life Building Jacksonville, Florida 32202 Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
Findings Of Fact By an application received by the Board on March 21, 1979, Petitioner Carole Leigh McGraw applied for registration as a real estate salesman with the Florida Board of Real Estate. Question number 6 of the application form inquired about past arrests or charges for violation of law. Ms. McGraw indicated that she had been arrested and as an explanation attached a separate sheet of paper on which she disclosed that she was arrested in July, 1973 for various criminal charges pending before the Court of Common Pleas in Cincinnati, Ohio. She referred the Board for further details to her attorney, James N. Perry, Esquire of Cincinnati, Ohio. No attempt was made by the applicant to conceal any of the facts relating to her outstanding charges. Subsequent to the receipt of her application the Board requested on April 10, 1979, that Ms. McGraw furnish a copy of the indictment and advise the Board of the present status of the indictment. That information was provided by James N. Perry, Esquire who indicated in his letter of April 23, 1979, that counts 1, 2, 3 and 4 of the twenty count indictment had been dismissed. The dismissal was on appeal and probably would be decided eventually by the Ohio Supreme Court as the issue on appeal is the constitutionality of the organized crime status of Ohio. On July 7, 1978, in the Hamilton County Court of Common Pleas, State of Ohio, the applicant, Carole Leigh McGraw, was indicted by Grand Jury on four counts of engaging in organized crime, six counts of forgery, one count of theft in office and one count of felony theft. None of these charges has been brought to trial. Except for the foregoing indictment the applicant has never been charged with any violation of law or with being dishonest or immoral in any way.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Carole Leigh McGraw for registration as a real estate salesman with the Florida Board of Real Estate be granted. DONE and ENTERED this 13th day of February, 1980, in Tallahassee, Florida. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1980. COPIES FURNISHED: Tina Hipple, Esquire Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Carole Leigh McGraw 4180 South West 52nd Court Apartment #1 Fort Lauderdale, Florida 33314
The Issue Whether Respondent obtained his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Chapters 455 and 475, Florida Statutes, and Title 61J2, Florida Administrative Code. Respondent is and, at all times material hereto, was a duly licensed real estate salesperson in the State of Florida. Respondent is now and was at all times material herein actively engaged in major real estate developments and has also operated on behalf of family owned corporations. During the relevant time period, Respondent has not engaged in the general real estate brokerage business. On August 16, 1984, Respondent was found guilty in federal court of one count of knowingly, willfully, and unlawfully participating in the use of extortionate means to collect and attempt to collect an extension of credit in violation of Title 18, United States Code, Section 894. Respondent was sentenced to 18 months in prison and fined $2,000. The incident which gave rise to the conviction occurred in and while the Respondent was a resident of Illinois, and prior to the Respondent's being issued his Florida real estate license. Respondent testified that in 1983 he owned a Chicago nightclub. According to Respondent, during that time period someone owed Respondent a gambling debt in the amount of $36,000. The person who owed the money to Respondent said he would pay the debt. Because the Respondent was leaving town, he asked his wife's uncle to pick up the money. The Respondent indicated, that unknown to him, the uncle used unlawful means in an attempt to collect the funds. It was this collection effort which eventually lead to the Respondent's arrest, not guilty plea, and guilty verdict in 1984. The Respondent moved to Florida and, subsequently, on or about January 19, 1994, he applied to become licensed as a Florida real estate salesperson. The application contained an affidavit which provided in part that "such responses are true and correct, and are as complete as his/her knowledge, information and records permit without any evasions or mental reservations whatsoever." Petitioner's application form contained Question 9 which requested information concerning an applicant's criminal history. In pertinent part the question is as follows: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned. * * * Your answer to this will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. In response to this question, Respondent answered in the negative by marking the "no" box. On April 18, 1994, the State of Florida issued Respondent license #0611142 as a real estate salesperson. On January 10, 1994, Respondent signed the application. By his duly notarized signature, the Respondent swore that all answers and information provided on his application were true, correct, and complete. On or about January 16, 1995, Respondent applied to become licensed as a real estate broker in the State of Florida. Respondent, again, checked "no" to Question 9 on his broker's application as to whether or not he had ever been convicted or found guilty of any crime. Also, Respondent again swore that all answers and information contained in his application to become a real estate broker in the State of Florida were true, correct, and complete. Again, the Respondent's signature was duly notarized. The broker's application was approved for the Petitioner. However, a broker's license was not issued because Respondent failed to pass the state examination required to be licensed as a broker. Respondent testified at the formal hearing that the reason he did not disclose his prior conviction on his real estate applications was that he had spoken to his brother who advised him that matters over 10 years old did not have to be disclosed. Respondent did not consult with an attorney, the Division of Real Estate or anyone else other than his brother about how to answer Question 9 on his real estate application. Respondent's stated justification for checking "no" on his license applications lacked credibility given the clear wording of Question 9 on the application form. The Respondent has had no other incidents of criminal problems. Similarly, there have been no civil judgments involving the Respondent and dishonest dealing. Finally, there have been no prior disciplinary matters against the Respondent. The Respondent has served in the military and was honorably discharged and earned a two-year degree in electronics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding the Respondent guilty of violating Section 475.25(1)(m), Florida Statutes; revoking his real estate license; and imposing a fine of $1000.00. DONE AND ENTERED this 10th day of February, 1998, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this * day of February, 1998. *Filed with the Clerk undated. -ac COPIES FURNISHED: Geoffrey T. Kirk, Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1415 East Robinson Street, Suite B Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation, Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 July 21, 1999 Henry M. Solares, Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Re: Department of Business and Professional Regulation, Division of Real Estate vs. Frank Efstathios Touloumis DOAH Case No. 97-3722 Dear Mr. Solares: Enclosed is the Amended Recommended Order issued in the referenced case. It was issued in order to correct a scrivenners error in page 8 of the original order. Please replace page 1 and page 8 enclosing for pages 1 and 8 oriignally sent to you. Please accept my apologies for any inconvenience this might have caused. Sincerely, CSH/scl Enclosures cc: Geoffrey T. Kirk, Esquire Frederick H. Wilson, Esquire CAROLYN S. HOLIFIELD Administrative Law Judge
The Issue The Petitioner's application for licensure as a real estate salesman was denied by the Board of Real Estate. By letter dated December 17, 1981, the Petitioner was advised that the Board's decision was based on the Petitioner's disclosure in his application that he had been arrested for a criminal offense, and his criminal record according to appropriate law enforcement agencies. The Petitioner challenged this decision of the Board by requesting an administrative hearing. The issue to be determined is whether the Petitioner meets the eligibility requirements for licensure as a real estate salesman. The Petitioner testified in his own be half and presented three other witnesses in support of his contention that he meets all eligibility requirements. These witnesses were the Petitioner's mother who is a licensed real estate broker, and two local businessmen who know the Petitioner, his work record, and his reputation in the community. The Board of Real Estate did not present any witnesses, but did offer in evidence the Petitioner's application and related papers, together with its denial letter, as a composite exhibit.
Findings Of Fact The Petitioner, Mark Bruck, is 20 years of age. In 1980, when he was 18, he was arrested and charged with grand theft auto and robbery. The Petitioner had been drinking with another boy. They went to an abandoned area in a van belonging to a third boy, took the van, and left the owner of the van there. As a result of this single occurrence, the Petitioner and his friend were arrested, and the Petitioner was charged with grand theft auto and robbery. The robbery charge was added to cover the articles of personal property inside the van that were taken with the van. The Petitioner's friend was permitted to enlist in the Marine Corps, and was not charged. The van was returned to its owner, and the Petitioner was permitted to enter a pretrial intervention program own condition that full restitution be made for the personal property and damage to the van. The Petitioner and his friend each paid approximately $1,700 in full restitution for the van and its contents. The Petitioner remained on this pretrial intervention program for a period of 18 months. Subsequently, the Petitioner was out with some other friends who stopped at a construction site and took several pieces of two-by-four lumber. Although the Petitioner did not leave the vehicle, and was not engaged in taking the lumber, he was arrested along with his friends for petty theft. Because of the intercession of his counsellor in the pretrial intervention program, the Petitioner was not charged with anything as a result of this incident. Previously, before he was 18 years old, the Petitioner had been charged with driving while intoxicated. However, on his application and in his answers to interrogatories propounded by counsel for the Board, the Petitioner only disclosed the one arrest for grand theft auto. The Petitioner explains this by stating that he actually had no recollection of the petty theft charge when answering the interrogatories and completing the application, and that he did not feel that the DWI charge was relevant. Based upon the observed candor and demeanor of the Petitioner, and the absence of any contradictory evidence, it is found as a fact that the Petitioner made as complete a disclosure of his arrest record as his recollection permitted without the advice of counsel. The Petitioner's completion of the pretrial intervention program removed him from the jurisdiction of the court for the grand theft auto charge and for the robbery charge. In approximately the year 1983 the Petitioner may petition the court to seal the record of these offenses. Now the Petitioner seeks to become licensed to sell real estate, and work in his mothers realty office. He has lived in Florida for all of his life. He has been working as a painter, then as a painting contractor, for approximately the past two years. In this work he receives money deposits from customers on jobs that are not yet begun, or are begun and not yet finished, and there has been no difficulty or dispute with his customers concerning these deposits. The Petitioner has been extended credit for sums up to $2,000, and he has a good reputation in the community. Two local businessmen, as a sample, would not hesitate to entrust funds to the Petitioner in connection with real estate purchases. Finally, with reference to his knowledge and capability to engage in real estate sales, the Petitioner achieved a score of 97 on the licensure examination. Presently, the Petitioner has matured and has a different outlook on life than he had in the past.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Real Estate grant the application of Mark Bruck for a real estate salesman's license. THIS RECOMMENDED ORDER entered on this 16th day of April, 1982. WILLIAM B. THOMAS, 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 16th day of April, 1982. COPIES FURNISHED: Mark Bruck, in pro per 11101 Royal Palm Boulevard Coral Springs, Florida 33065 Jeffrey A. Miller, Esquire Assistant Attorney General The Capitol, Room 1601 Tallahassee, Florida 32301 Frederick H. Wilsen, Esquire Assistant General Counsel 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shornstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Florida Real Estate Commission 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801
The Issue Has Mr. Juliano demonstrated that he is honest, truthful, trustworthy, and of good character and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (1981)?
Findings Of Fact On February 12, 1981, Mr. Juliano filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated April 28, 1981, the Board denied Mr. Juliano's application. As stated by the letter, "the specific reasons for the Board's action is based on your answer to Question #6 of the licensing application and your criminal record according to the appropriate law enforcement agency." Question #6 of the application asks: 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 paroled? Mr. Juliano responded "Yes" he had. The question further requested the details in full concerning any arrests. In response Mr. Juliano answered: Arrested for possession of canibus, [sic] pleaded guilty, placed on probation for 30 months. I am not on probation now. On May 31, 1977, the Circuit Court in and for Seminole County, Florida, in Case No. 77-171-CFA, State of Florida v. Frank Arthur Juliano, entered judgment whereby Mr. Juliano who entered a plea of guilty to possession of controlled substances was placed on probation for a period of 30 months with adjudication of guilt withheld. Mr. Juliano successfully completed the terms of his probation which expired on November 30, 1979. There was some confusion about the nature of the judgment entered by the Seminole County Circuit Court referenced above. Upon the receipt of Mr. Juliano's application for licensure the Board staff, as it customarily does, wrote a letter to him dated March 4, 1981 in which it requested additional information about the arrest mentioned in his answer to Question #6 on the application. In response to that inquiry Mr. Juliano obtained and sent to the Board a report from the Florida Department of Law Enforcement which indicates that Mr. Juliano was arrested on March 7, 1977 for the sale and delivery of controlled drugs. The report further indicates that adjudication was withheld and he was placed on probation for 30 months. A cursory reading of the report might cause the reader to believe that judgment was entered on a charge of sale and delivery. Such a reading would not be correct. Mr. Juliano did not enter a plea to the sale and delivery of controlled substances, but pled only to the charge of possession of controlled substances, a less serious crime. This fact is reflected in the actual Order of Judgment entered by the Seminole County Circuit Court. Since his arrest and probation on the possession charge Mr. Juliano has not been arrested for or charged with any other criminal acts. He has subsequently led a law-abiding life and conducted himself in an honest and trustworthy manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Real Estate enter a Final Order finding Petitioner qualified pursuant to Section 475.17(1), Florida Statutes (1981) to take the licensing examination provided for in Section 475.17(5), Florida Statutes (1981), to be licensed as a real estate salesperson in the State of Florida. DONE and ORDERED this 26th day of February, 1982, in Tallahassee, Florida. MICHAEL PEARCE DODSON 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 26th day of February, 1982.
