Findings Of Fact The parties stipulated that Richard E. Ebner was registered as a real estate salesman on March 8, 1974 and has been so registered since that date having been issued license No. 0126254, that said license was applied for by Ebner, who prepared the application, which was jointly stipulated to be received into evidence as Exhibit 1. The parties further stipulated to the fact that Exhibit 1 contains question 9, as set forth in the Administrative Complaint in paragraph 2, and question 19, as set forth in the Administrative Complaint in paragraph 6, and that Ebner had answered question 9, "Yes. . . Midsdemeanor - Marijuana possession 1971," and question 19, "No." The parties further stipulated to the admission into evidence of Exhibit 2, Court Records of Arrest dated September 25, 1970; Exhibit 3, Court Records of Information dated September 29, 1970; and Exhibit 6, Court Records, Order of Incompetency. It was stipulated that an Order of Nolle Prosequi had been entered regarding the charges upon which the arrest, Exhibit 3, were based. The Commission offered Exhibit 4, a letter of Sheriff Collier dated January 12, 1974; and Exhibit 5, a judgment in Case No. 676 dated August 17, 1971, which were received into evidence. Thereafter on the basis of the stipulation and admission of Exhibits 5 and 6, the Commission rested its case. The Respondent then moved for dismissal of the charges because the charges were insufficient because the Commission failed to show if these matters had been disclosed the license would have been denied. The Hearing Officer denied the motion. The Respondent called his father and mother to testify. Richard Ebner had had in 1970 a drug problem and had been addicted to heroin. His parents searched the state for a hospital to treat their son. Having found a hospital, they went to the County Judge and explained their fears that their son might not stay in the hospital. Without a hearing, the Judge entered the Order of Incompetency, Exhibit 6. Thereafter, their son had gone to the hospital and remained there voluntarily. They both testified that their son, Richard Ebner, had no knowledge of the Judge's Order, and that they themselves were unaware of the nature of the order beyond the fact that they had been told it was sufficient to require their son to remain in the hospital if he tried to leave. The Board subsequently presented rebuttal testimony on the issue of incompetency that Richard Ebner's counsel had interposed an insanity plea to the 1971 arrest based upon the Order of Incompetency, see Exhibit 9. The Court refused this defense. Richard Ebner testified that he had known about the insanity defense his attorney had presented to his 1971 arrest, but that he had had no knowledge in 1971 that he had been declared incompetent by any Court or when he filled out the application. The Commission's investigator indicated that the Court's record indicated only the Order of Incompetency and no further pleadings. The Hearing Officer finds that Richard Ebner had no knowledge of the Order, Exhibit 6, adjudging him incompetent. Regarding question 9, the Commission's Exhibits 2 and 3 revealed that Ebner had been arrested in 1970 for obtaining or attempting to obtain a barbiturate or central nervous system stimulant by fraud, misrepresentation, deceit or subterfuge, or by forgery or alteration of a prescription, and uttering any false or forged prescription. As stated above, it was stipulated that these charges were dropped. The Commission's Exhibits 4 and 5 reveal that Ebner was arrested on March 30, 1971 for (1) possession if marijuana and (2) possession of marijuana paraphernalia. The charge relating to possession of paraphernalia was dropped, and Ebner was tried on possession of marijuana on June 28, 1971, found guilty and sentenced to six (6) months in the county jail. He served his sentence and was released January 12, 1972. Regarding the offense, the Respondent, Ebner, had stated on his application in response to question 9, "Misdemeanor - Marijuana possession in 1971." Richard Ebner is currently working for his father and brother in their family business and actively engaged in underwater salvage and repair as a hard hat (deep sea) diver. He works as long as 3 - 10 hours under water, and has performed such responsible work as maintenance of underwater cameras at a nuclear power plant. He testified that he no longer uses narcotic drugs and that to do so would jeopardize his life in his occupation as a diver. The Respondent appeared relaxed and confident on the witness stand and answered questions put to him by the attorneys and Hearing Officer forthrightly and without hesitation. He admitted his addiction to drugs, stated that he had overcome this, that he had not tried to conceal his 1970 arrest but thought that because the charges had been dropped by this state that there was no need to report it. He similarly stated that he had responded to question 9 regarding the 1971 arrest, conviction and sentencing.
Findings Of Fact On September 30, 1987, the Petitioner herein, Joseph A. Tumbiolo, submitted an Application For Licensure as a Real Estate Salesman, to the Respondent, Florida Real Estate Commission which was received on October 2, 1987. In response to question 6 on the application, Petitioner indicated he had pleaded guilty to and been found guilty of two separate misdemeanor batteries in 1986, and that adjudication of guilt had been withheld on a charge of false imprisonment the same year. Based on this answer and Petitioner's explanation thereof, the Commission denied his application for licensure on the basis that due to his convictions, he did not meet the requirement of Section 475.17(1), Florida Statutes. This section calls for the applicant to be "honest, truthful, trustworthy, and of good character, and ... [with] a good reputation for fair dealing." Records of the County Court of Pinellas County, Florida, reflect that on January 22, 1987, Petitioner pleaded guilty to two separate charges of battery (one against Charles J. Merteno on March 26, 1986, and one against Edwin D. Maxwell on April 13, 1986.) In both cases he was placed on probation for six months on the condition that he pay a $300.00 fine, do twenty-five hours of public service, refrain from the consumption of alcohol, and continue psychological counseling. Court records of the Circuit Court for the Sixth Judicial Circuit of Florida, in and for Pinellas County reflect that on November 17, 1986, Petitioner entered a plea of nolo contendere to a charge of false imprisonment of two women. Adjudication of guilt was withheld and Petitioner was placed on probation for 18 months on conditions which included, inter alia, that he continue counseling. Petitioner explained the circumstances of his offenses, indicating that the first two arose out of traffic incidents. The false imprisonment charge was filed when he called the police to eject two women from his video store when they refused to leave upon his request when he wanted to close up. He claims that all offenses came about due to his physical and mental state at the time which was affected by the pressure of his business. Business was bad, his landlord was giving him problems, he was working 60 to 70 hours per week, and he developed, he contends, a chemical imbalance in his system which resulted in his experiencing a manic episode. When the stress of the traffic incidents and the other incident with the ladies was applied, each created an overload and he lost control. None of the offenses was major. In no case was anyone injured. In the case of Mr. Maxwell, the victim did not press charges. Subsequent to these incidents and before the hearings took place, on his own volition, Petitioner sought medical help and psychological counseling for his physical problem. Both have helped him and he feels much better. He has been living with his parents in Bradenton, away from the source of his problems, and is doing well. Mr. Tumbiolo's probation officer indicates Petitioner has been diligent in trying to comply with all conditions of his probation and on December 10, 1987, petitioned the court to grant an early termination of probation. The court did not grant the request. Petitioner's probation counselor from the Salvation Army confirms that he has fully complied with the conditions of his probation. Family, friends and neighbors consider him to be reliable and trustworthy as well as compassionate and understanding of others. He is considered intelligent and pleasant and is recommended for employment. Mr. Tumbiolo is licensed as an insurance salesman in both New York and New Jersey and has worked in sales positions dealing with the public without problems for approximately ten years. He believes the counseling which he has undergone was very helpful to him and the correction of the chemical imbalance he formerly experienced has enabled him to now cope with stress in an appropriate manner. He has an offer to work in real estate with a family friend if he can get his record cleared.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Joseph A. Tumbiolo, be denied licensure as a real estate salesman in Florida. Recommended in Tallahassee, Florida, this 10th day of June, 1988. ARNOLD H. POLLOCK 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 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1233 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner NONE For the Respondent 1 - 4. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. COPIES FURNISHED: Joseph Anthony Tumbiolo 6811 - 18th Avenue Drive West Bradenton, Florida 34209 Manuel E. Oliver, Esquire DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801 Darlene F. Keller Acting Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801
The Issue What is the appropriate fine for Respondent's 17 violations of Chapter 106, Florida Statutes (1999)?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent is an elected public official, a State of Florida State Senator; violations of the Florida Elections Law during his election to that high office triggered this case. He has been a state legislator for more than a decade. The Third District Court of Appeal remanded the original case for reconsideration of the penalty after affirming Respondent's 17 violations of Chapter 106, Florida Statutes (1999). The 17 violations affirmed by the Third District Court of Appeal are: two violations of Subsection 106.07(5), Florida Statutes (1999), for certifying as correct, an incorrect campaign treasurer's report; four violations of Subsection 106.19(1)(b), Florida Statutes, for failing to report four personal loans (contributions) to his campaign; five violations of Subsection 106.143(1), Florida Statutes, for advertisements without disclaimers; five violations of Subsection 106.132(2), Florida Statutes, for advertisements that did not contain a party affiliation; one violation of Subsection 106.143(4)(a), Florida Statutes, for failure to state that the candidate approved the campaign advertisement. Respondent's current employment is that of a Florida state senator. His direct income from that employment is $29,916. He receives additional payments from the State of Florida in the form of reimbursements for travel, per diem, and other approved expenses related to his official position. Respondent enjoys a remarkable lifestyle. He owns two homes, one in Miami and the other in Tallahassee. Recently married, the Tallahassee home is jointly-owned with his wife and was purchased for $795,000. While the Miami home was owned by Respondent, individually, prior to the marriage, it is now jointly-owned. The change in title to the Miami home may be the result of refinancing subsequent to his marriage. Respondent leases a Lexus automobile; the monthly lease cost is $755. Respondent maintains a Schwab investment account to which he contributes $150 monthly. In August 2005, the account had a value of approximately $7,200. Respondent maintains an American Express credit card account, jointly with his wife, that had a balance due of $61,000 during the time of the hearings. In September 2004, Respondent loaned his legislative aide $15,000, which at the time of the hearings remained un- repaid. In May 2005, Respondent refinanced his Miami home, which he valued at $210,000 on his 2004 Form 6, for $384,300. At the time of the hearings, Respondent had funds on deposit in Sunshine State Credit Union and Washington Mutual Bank of approximately $3,800. Respondent's personal living expenses exceed his stated income. No reasonable explanation has been offered for his ability to maintain his lifestyle. Respondent's net worth will allow him to pay any fine appropriate for the 17 violations of law affirmed by the Third District Court of Appeal. Respondent had previously violated Subsection 106.57(5), Florida Statutes (1999).
Conclusions For Petitioner: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 For Respondent: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Election Commission impose a penalty of $8,750 on Respondent, Senator Alex Diaz de la Portilla. DONE AND ENTERED this 6th day of January, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2006. COPIES FURNISHED: Mark Herron, Esquire Messer, Caparello & Self, P.A. Post Office Box 1876 Tallahassee, Florida 32302-1876 Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Benedict P. Kuehne, Esquire Sale & Kuehne, P.A. BankAmerica Tower, Suite 3550 100 Southeast Second Street Miami, Florida 33131-2154 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050
Findings Of Fact The parties stipulated that except for the reasons set forth in the Department's letter of March 17, 1983, the Petitioner, Suzanne McDermott, is otherwise qualified for licensure. On May 14, 1977, in the Circuit Court of Hillsborough County, the Petitioner pled guilty to the offense of unlawfully and feloniously delivering a certain controlled substance, to wit: cocaine. Said court withheld adjudication and imposition of sentence and placed the Petitioner on probation for seven years. After she was placed on probation, Petitioner ceased using controlled substances. By order of the court, she was evaluated by a drug treatment program, found to be not addicted to controlled substances, and has not since used controlled substances. Petitioner's probation was terminated after two years by the recommendation of her probation officer, and she has been off probation for approximately three years. The Petitioner completed an application for licensure as a general lines agent and submitted it to the Department of Insurance and Treasurer. She answered in the negative Question 13 of said application, which reads as follows: Have you ever been charged with or convicted of a felony? The Petitioner stated that she interpreted this question to ask whether she had been convicted of a felony (TR-11.) The Petitioner has not been convicted of a felony. Petitioner's testimony was credible. When asked to clarify or amplify her status, the Petitioner employed an attorney to obtain her court records and provided them to the Department. These records were the ones introduced by the Department at the hearing. The Petitioner has been employed for five and a half years with Poe and Associates, Inc. Tom McMullen, a vice president with Poe and Associates and the Petitioner's immediate supervisor, testified that she is a highly competent and knowledgeable employee. She has completed the educational requirements to be an underwriter. McMullen observes Petitioner's work every business day, and she is responsible for handling money on a routine basis. Her accounts are always in order, and she has never had any problem with her accounts. At the time the Petitioner engaged in the activities for which she was placed on probation, she was head teller at Southeast Bank of Tampa. These activities did not in any way involve her position with the bank.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Suzanne McDermott, for licensure as a general lines agent be approved. DONE and RECOMMENDED this 8th day of September, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1983. COPIES FURNISHED: Ms. Suzanne McDermott 4208 Watrous Avenue Tampa, Florida 33609 Clark R. Jennings, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32301 The Honorable Bill Gunter State Treasurer and Insurance Commissioner The Capitol Tallahassee, Florida 32301
Findings Of Fact 1. On September 20, 2010, the staff of the Commission issued a Staff Recommendation, recommending to the Commission that there was probable cause to believe that The Florida Election Code was violated. 2. The Respondent was served by certified mail through his attorney with a copy of the Order of Probable Cause. 3. The Respondent and the staff stipulate to the following facts: a. The Respondent Darin Wade Mellinger, was a candidate for the Delray Beach City Commission in the March 10, 2010, general election. b. During his campaign, Respondent submitted reports of all contributions _ received and all expenditures made. Respondent’s 2010 G1, 2010 G2, and 2010 G3 reports were missing information. c. Respondent maintained a website during his campaign. Respondent’s C_o 045 (12/08) 1 website did not contain the required political disclaimer and did not contain the word “for” between his name and the office he sought.
The Issue Whether Respondent's registration as a real estate salesman should be revoked for alleged violation of Section 475.25(2), Florida Statutes.
Findings Of Fact Respondent executed an application for registration as a real estate salesman on March 26, 1973, and filed the application with the Florida Real Estate Commission on April 2, 1973 (Petitioner's Exhibit 1). Question 9 on the application reads as follows: "9. 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, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted. Yes If yes, state details in full 1969 Convicted D.U.I Arrested for hindering police officer found not Guilty, Arrested for gambling Found not Guilty." Official records of the Dade County Public Safety Department reflect the following: On February 25, 1954, Respondent was arrested and charged with bookmaking. The charge was nolle-prossed on June 25, 1954 (Petitioner's Exhibit 7). On December 1, 1959, Respondent was arrested and charged with operating a gambling house, bookmaking, conspiring to violate gambling laws, and possession of gambling devices. The charges of operating a gambling house and bookmaking were dismissed on September 13, 1960 and no action was taken as to the other two charged (Petitioner's Exhibit 6). On May 17, 1963, Respondent was arrested and charge, with operating and conducting a gambling house, bookmaking, possession of gambling equipment and paraphernalia, and a traffic offense. The records reflect that the first three charges were not prosecuted and there is no showing of the disposition of the traffic offense (Petitioner's Exhibit 5). On April 26, 1969, Respondent was arrested and charged with vagrancy, possession of gambling paraphernalia, and possession of telephone slugs. The charges were dismissed (Petitioner's Exhibit 4). On June 16, 1972, Respondent was arrested and charged with hindering a police officer, and resisting arrest. On October 5, 1972, he was found not guilty of resisting arrest and there is no record of any further action taken with regard to the charge of hindering a police officer (Petitioner's Exhibit 2,3). Respondent testified that he had filled out the application form to the best of his ability and recollection at the time, and that he did not intend to deceive or conceal any of his prior arrests from the Real Estate Commission. He acknowledged that he should have indicated his gambling offenses in the plural in Question 9 of the application and that it was not his intention to show it in the singular. In support of this contention, he testified that he had filed a prior application for certification as a real estate salesman with the Commission about 1971, and that on that application he inserted the words "numerous gambling arrests" on Question 9. He felt that this fact, coupled with his admission on the 1973 application as to various offenses, would enable the Commission, when they checked his prior record, to obtain all relevant details concerning his prior criminal record. He further testified that he had never been convicted of gambling and that the charge of possessing gambling paraphernalia involved racing forms which were found in his motor vehicle. He further testified that he had not been arrested since 1972 and had never had any complaints during his six months of employment as a real estate salesman. Mr. Samen, an investigator for the Commission, testified that the Respondent had been very cooperative in his investigation of this case. He also stated that Respondent never indicated to him that he had filed a prior application for certification, and that the file of the Respondent had not reflected any previous application having been filed. Respondent acknowledged at the hearing that he had answered "No" to Question 14 on the 1973 application concerning whether or not he had previously filed any application for registration as broker or salesman in Florida which had not been granted, but that this was due to misreading the question. Pursuant to stipulation at the hearing, Mr. Fetner, Associate Counsel for the Commission, agreed to search the Commission records after the hearing to determine whether or not Respondent had filed a previous application and to submit a late-filed exhibit concerning this fact. By letter of November 21, 1975, Mr. Fetner provided evidence to the Hearing Officer that the Commission records did reveal that Respondent had taken an examination for registration as a real estate salesman in 1968 but had failed the same, and that this fact would establish that Respondent had filed a previous application for registration because the granting of approval to take an examination is predicated upon the applicant having filed an application for registration. The records of the Commission, however, indicated that the prior application filed by Respondent was destroyed in 1973, or prior thereto (Petitioner's Composite Exhibit 9). In view of the foregoing substantiation of Respondent's testimony as to the filing of a prior application, testimony that he had advised the Commission of numerous gambling arrests in Question 9 of that application is deemed to be credible and is accepted as a fact, there being no evidence submitted to the contrary.
