The Issue Whether Petitioner, Kay McGinn, willfully violated Subsection 106.07(5), Florida Statutes (2001), when she certified the correctness of a campaign treasurer's report that was incorrect, false, or incomplete because it failed to disclose an in-kind contribution by Frank Furman for the use of telephones used by Petitioner and her campaign volunteers in offices that Mr. Furman owned.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is the Mayor of Pompano Beach, Florida. She ran unsuccessfully for Pompano Beach City Commission in 1996. Her campaigns for the same office in 1998, 2000, and 2002 were successful. The alleged offense took place during the 2002 election campaign. Petitioner is an intelligent, conscientious public servant. She is familiar with the Florida election law and is sensitive to her obligation to follow the law and diligent in her attempt to do so. During the 2002 campaign, Frank Furman, a long-time Pompano Beach business man who enjoys an excellent reputation, offered the use of his business offices to Petitioner for campaign activities. Petitioner chose to use Furman's office on six to eight occasions to make campaign-related local telephone calls. Typically, Petitioner and five or six volunteers would spend about one hour in the early evening calling Pompano Beach voters encouraging them to vote for Petitioner. Mindful of the election law requiring the reporting of "in-kind" contributions, Petitioner asked Mr. Furman the value of the use of his telephones for reporting purposes. Furman advised Petitioner that the use of his telephones had "no value." In reporting "in-kind" contributions, Petitioner's practice was to ask the contributor to provide an invoice reflecting the "fair market value" of the "in-kind" contribution. Armed with the invoice, she would then report the "in-kind" contribution. "Fair market value" is an economic concept used most frequently in reported Florida cases when referring to the value of real property taken in condemnation actions or in determining restitution in criminal cases. Numerous definitions are found. Typically, the definitions involve "a willing buyer and a willing seller, fully informed as to the value of the object of the transaction, neither being under any compulsion to buy or sell." Respondent's Statement of Findings, which was analyzed by Petitioner's expert witness, offers an amortized cost to Mr. Furman for use by Petitioner and her volunteers of the telephones. This amortized cost is apparently advanced as evidence of "fair market value" or "attributable monetary value." Mr. Furman pays a fixed-rate of slightly less than $1,500.00 per month for the use of 32 to 33 telephone lines. This means that each line costs approximately $46.87 per month. Assuming 30 days per month, the daily cost per line is $1.56. Assuming 24-hour days, the hourly cost per line is $0.065. Further assuming that six volunteers used one telephone for one hour on eight different days, the result is 48 hours of line use. The resulting amortized use cost, given the known use by Petitioner and her campaign volunteers, is $3.12. Amortized use cost is not fair market value. Neither an "attributable monetary value" nor a "fair market value" of Petitioner's use of Mr. Furman's telephones was established. To the contrary, it was established that there was no "market" for access to six to eight telephones for one hour, one night per week. While it is assumed that Petitioner would benefit from telephone calls made by her supporters, whether made from their individual homes or from some group setting, the evidence failed to established that Petitioner's use of Mr. Furman's telephones had any "attributable monetary value" or "fair market value." Given that the use of the telephones by Petitioner was during non-working hours when the telephones would normally be idle, it is not surprising that Mr. Furman advised Petitioner that there was no cost associated with the use of his telephones. His monthly telephone bill would be the same whether Petitioner used his telephones or not. Nor is Petitioner to be faulted for relying on the contributor's assessment of the value of the "in-kind" contribution of the use of the telephones. The real value to Petitioner's campaign was the use of Mr. Furman's office as a meeting place. As a practical matter, each volunteer could have taken a list of the telephone numbers of Pompano Beach voters to their respective homes and made the telephone calls from their homes. This was not a professional "phone bank," sometimes used in political campaigns where trained callers use scripted messages designed to elicit voter preferences and where the candidates receives "feed-back" on salient issues. A "fair market value" can be easily established for such services as they are common in the market place. The evidence suggests that campaign volunteers making telephone calls to registered voters from their homes or from someone's office is a common practice in political campaigns in Florida. It is also suggested that this common practice is not reported as a campaign contribution.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order finding that Petitioner, Kay McGinn, did not violate Subsection 106.07(5), Florida Statutes, as alleged, and dismissing the Order of Probable Cause. DONE AND ENTERED this 13th day of January, 2004, 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 13th day of January, 2004. COPIES FURNISHED: Eric M. Lipman, Esquire Florida Elections Commission Collins Building, Suite 224 107 West Gaines Street Tallahassee, Florida 32399-1050 Stuart R. Michelson, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Barbara M. Linthicum, Executive Director Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050 Patsy Rushing, Clerk Florida Elections Commission The Collins Building, Suite 224 Tallahassee, Florida 32399-1050
The Issue Whether Respondent's real estate broker's license should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Respondent, Fred J. Will was a licensed real estate broker in the state of Florida having been issued license number 0142418, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida 32014. At all times material to this proceeding, Richard P. Pollock was a licensed real estate salesman in the state of Florida having been issued license number 0139861, c/o Fred J. Will, t/a Will Realty, 326 1/2 South Beach Street, Daytona Beach, Florida, with a last listed home address of Post Office Box 2085, Flagler Beach, Florida 32036. Either in late December 1987 or early January 1988, Pollock approached Will with the idea of opening a real estate office using Will's real estate broker's license wherein Pollock would run the office since Will was currently employed managing the self storage facility of Regency Health Care Centers, Inc. In late January 1988, Will filed a Request For License or Change of Status Form using license number 0142418 wherein he advised the Petitioner that he would be operating under Will Realty located at 326 1/2 South Beach Street, Daytona Beach, Florida. Upon opening the offices at 326 1/2 South Beach Street, Will opened an operating or business bank account and an escrow bank account for the Will Realty at the Commercial National Bank (Commercial) Only Will was authorized to write checks on the excrow account. There was insufficient evidence to show whether any funds were ever deposited in the business or escrow account at Commercial. Once the office and bank accounts were opened, Will left the daily operation of the office to Pollock and was at the office only a couple of times between the time it was opened in late January 1988 and when it was closed around April 23, 1988. The "agreement", as such, between Will and Pollock was a 50/50 "split" once the business "got going". Will did not receive any compensation from Pollock for the "use of his license". Will did not receive any money from Pollock in regard to Will Realty, personally or for deposit in either bank account at Commercial. The "agreement" was that Will would allow Pollock to "work under" his real estate broker's license. Will did not have any knowledge of the advertising being used by Pollock for Will Realty such as newspaper ads or business cards until just before the office closed in April 1988. Will did not have any knowledge of the forms being used by Pollock for Will Realty such as contracts or agreements for advance fee arrangements or receipts evidencing payment of such fee until just before the office closed in April 1988. Additionally, Will did not have any knowledge of the advance fee arrangement which Pollock may have had with prospective tenants as payment for securing rentals until just before the office closed in April 1988. Will did not have any knowledge of Pollock opening the bank accounts at Coast Federal Savings and Loan Association (Coast) in the name of Will Realty until just before the office closed in April 1988. None of the funds received by Pollock from prospective tenants while with Will Realty were deposited in the accounts at Commercial. Nor did any of the funds collected by Pollock from prospective tenants while he was with Will Realty go to Will personally. During the latter part of March 1988, Donna Elliott approached Pollock through Will Realty for the purpose of finding a home to rent. Pollock arranged for Edward R. Brown to show Elliott a home he had for rent. Elliott eventually rented this home and gave Pollock a check in the amount of $100.00 dated March 26, 1988 as a deposit on the home. On March 31, 1988 Elliott mailed Pollock another check in the amount of $1,000.00 as rent for the Brown home. The funds from these two checks were deposited in the account at Coast. Brown experienced some difficulty in getting Pollock to pay the deposit and rent collected from Elliott. However, once Will became aware of the situation he demanded that Pollock pay over the deposit and rent and, as a result of Will's effort Brown received $575.00 from Pollock. After paying Brown the $575.00 Pollock disappeared and Brown demanded the balance from Will since Pollock was working under Will's real estate broker's license. At first, Will agreed but later on advice of counsel declined to pay on the basis that it was not his responsibility. Brown filed suit and was awarded a judgment for the balance which Will paid. Around the middle of April 1988 Diane Smith approached Pollock for the purposes of renting a home. Smith paid Pollock an advance fee of $75.00 for service to be rendered by Pollock in securing her a rental home. However, before Pollock found a rental home for Smith he disappeared without returning Smith's fee. Within a short period after Smith paid the advance fee she went to the office of Will Realty only to find it closed and Pollock gone. There was no evidence that Smith made a demand on Will for the return of the advance fee paid to Pollock. After Will became aware of the situation he called Petitioner's Orlando office and was informed by Judy Smith that he should close the office immediately. Will followed this advice and closed the office sometime around April 23, 1988. As soon as Will began to receive complaints from Pollock's clients he got involved with Pollock and attempted to correct the problems but Pollock disappeared before Will could correct the situation. There was insufficient evidence to show that while Pollock was at Will Realty, any of his prospective tenants, other than Smith, specifically Catherine Vick, failed to receive reimbursement for any advance fee paid to Pollock where rentals were not obtained for the prospective tenant. Will was not directly involved with any of the transactions between Pollock and the prospective tenants and did not have any knowledge of these transactions until shortly before Pollock disappeared and Will Realty was closed.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the mitigating circumstances surrounding this case, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent, Fred J. Will guilty of violating Section 475.25(1) (d) and (e), Florida Statutes, and for such violation impose an administrative fine of $500.00 and issue a reprimand. In recommending the reprimand I have taken into consideration the harshness of a suspension or revocation and feel that under the circumstances of this case that a reprimand and a fine is more appropriate. See: Webb v. Florida Real Estate Commission, 351 So.2d 71 (2 DCA Fla. 1977). It is further RECOMMENDED that Counts VI, IX and XIV of the Administrative Complaint be DISMISSED. DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 22nd day of February, 1990. COPIES FURNISHED: Darlene F. Keller, Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Kenneth Easley, Esquire General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0750 James H. Gillis, Esquire Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801 Robert W. Elton, Esquire 648 S. Ridgewood Avenue Daytona Beach, Florida 32014 Fred J. Will 2281 Carmen Daytona Beach, Florida 32119
The Issue The issue for determination is whether Ms. Spence-Jones committed the offenses set forth in the Order of Probable Cause, filed September 1, 2006, and, if so, what action should be taken.
Findings Of Fact FEC received a sworn complaint against Ms. Spence-Jones from Mr. Dunn on or about January 20, 2006. Mr. Dunn alleged the following in his sworn complaint: Michelle Spence-Jones violated F.S. 104.271 with false and malicious charges against and about me on November 26, 27, 28, & 29th [sic] with thousands of campaign literature distributed to residents in the City of Miami, District 5. Along with a radio commercial with slander on radio stations . . . in Miami on November 29th election day by her campaign manager/advisor . . . The Michelle Spence-Jones campaign paid for individuals to vote for Michelle Spence-Jones $50 per vote! . . . F.S. 104.061. The City of Miami, Manager . . . violated F.S. 104.31 as documented in the Miami New Times article attached. Affidavits, campaign literature, and photograph were attached to the sworn complaint. Mr. Dunn’s sworn complaint asserted factually specific violations that Ms. Spence-Jones, in her campaign literature that was distributed on dates certain, made false and malicious charges against and about him; that, on election day, radio commercials by her campaign manager/advisor contained slander; that her campaign paid individuals to vote for her; and that the City of Miami’s Manager violated a specified statutory provision as documented in a news article, attached to his sworn complaint. Further, his sworn complaint cited statutorily specific violations for the factually specific violations— Sections 104.271, 104.061, and 104.31, Florida Statutes. An investigator with FEC investigated Mr. Dunn’s sworn complaint. After the investigation, a Staff Recommendation was prepared. The Staff Recommendation was submitted to FEC. The Staff Recommendation recommended that probable cause be found for the following: two counts for violating Sections 106.12(3), Florida Statutes; three counts for violating Section 106.143(1)(a), Florida Statutes; two counts for violating Section 106.1439(1), Florida Statutes; and one count for violating Section 106.19(1)(d), Florida Statutes. Further, the Staff Recommendation recommended that no probable cause be found for the following: violating Sections 104.061(2),104.271(2), and 106.15(3), Florida Statutes. On September 1, 2006, FEC filed an Order of Probable Cause finding probable cause to charge Ms. Spence-Jones with the following: Count 1: On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $22,910 to pay campaign workers with cash. Count 2: On or about November 28, 2005, [she] violated Section 106.12(3), Florida Statutes, prohibiting a person from spending petty cash on unauthorized items, when [she] spent $1,090.75 cash for food and other supplies to several vendors. Count 3: Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Will a man rob God?” on the radio without the proper disclaimer. Count 4: Between November 23 and November 29, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the ad “Michelle Spence-Jones is a strong black woman...” on the radio without the proper disclaimer. Count 5: On or about November 26, 2005, [she] violated Section 106.143(1)(a), Florida Statutes, by failing to mark prominently the political advertisement with the correct disclaimer, when she published the flyer “Don’t Gamble on Rev. Richard Dunn” without the proper disclaimer. (Exhibit 15 attached to Report of Investigation). Count 6: Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “... Again, I’m Michelle Spence- Jones, candidate for City of Miami Commission District Five. Happy Thanksgiving. May God continue to bless you and keep you well...” without any disclaimer. Count 7: Between November 23 and November 29, 2005, [she] violated Section 106.1439(1), Florida Statutes, by failing to mark prominently the electioneering communication with the correct disclaimer, when she published the ad stating, “...I’m Michelle Spence-Jones, candidate for City of Miami Commission District Five. As we recover from this year’s hurricane season, we were encouraged by the kindness of others who have given to their neighbors in their time of need...” without any disclaimer. Count 8: On or about November 28, 2005, [she] violated Section 106.19(1)(d), Florida Statutes, by making or authorizing an expenditure prohibited by Chapter 106, Florida Statutes, when [she] authorized her campaign treasurer to spend $24,000 to pay campaign workers and to purchase food with cash and subsequently ratified those cash expenditures by signing the 2005 termination report. Further, the Order of Probable Cause found no probable cause to charge Ms. Spence-Jones with the following: Section 104.061(2), Florida Statutes, prohibiting a person from giving or promising anything of value to a person intending to buy that person’s or another’s vote or to corruptly influence that person or another in casting his vote; Section 104.271(2), Florida Statutes, prohibiting a candidate from making false and defamatory factual statements with malice about an opposing candidate; and Section 106.15(3), Florida Statutes, prohibiting a candidate from using the services or any municipal officer or employee during working hours for furthering her candidacy for nomination or election to public office. Ms. Spence-Jones disputed the Order of Probable Cause and requested a hearing before the Division of Administrative Hearings. On January 16, 2007, Ms. Spence-Jones filed a Motion to Dismiss Proceeding for Lack of Jurisdiction or for Summary Final Order, together with one exhibit. On January 24, 2007, FEC filed a Response in Opposition, together with five exhibits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Elections Commission enter a final order dismissing the Order of Probable Cause, Counts one through eight, for lack of jurisdiction. DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 day of February, 2007.
The Issue Whether the Respondent was validly disciplined by a local government, which causes the Respondent to be in violation of Section 489.129(1)(i), Florida Statutes. Whether the Respondent is guilty of fraud, or deceit or of gross negligence, incompetence, or misconduct in the practice of contracting, in violation of Section 489.129(1)(m), Florida Statutes.
Findings Of Fact At all times material to these proceedings, the Respondent, Tillack Ram Netram, was licensed as a certified residential contractor and held license number CR C035238. On or about November 16, 1988, a duly noticed hearing was held before the Contractors Regulatory Board of the City of Cape Coral to determine whether Respondent Netram had violated local ordinances by falsifying three certificates of occupancy in order to close real estate transactions and receive money before the residences were actually approved for occupancy by the City of Cape Coral. The incomplete permits were removed from the property prior to actual completion, and copies of falsified permits were given to the closing agent. The falsified permits showed that certificates of occupancy had been issued by the local building department when in fact, this had not occurred. All of the witnesses at the hearing were placed under oath and were subject to cross-examination by Respondent Netram's attorney, Terry Signorella. The Respondent was present at the proceeding and was allowed to present evidence and to testify in his own behalf. At the close of the evidentiary portion of the proceeding on November 16, 1988, Respondent Netram was found guilty by the local board of making misleading, deceptive, untrue or fraudulent representations in the practice of his contracting business. He committed these violations by delivering three building permits with forged signatures under the Certificate of Occupancy approval portion of the permits to Miss Peggy Burt of Stewart Title Company in Fort Myers. This conduct constitutes three violations of Section 6.10(1) of the Municipal Code. As a result of the alleged violations, Respondent's permit pulling privileges were suspended for a period of six months. An appeal was not taken of the disciplinary action. On November 15, 1988, an Information was filed against the Respondent which charged the Respondent with five counts of grand theft and scheme to defraud in connection with five separate real estate sales. At the time of hearing, these charges were still pending. The investigator for the State Attorney's offices attended the formal administrative hearing and presented a copy of his investigatory file. All of the testimony and documents presented were uncorroborated hearsay. None of the documents, including official records, were properly verified. There was no evidence submitted in mitigation or in aggravation of the penalties provided for the alleged violations.
Recommendation Because the Respondent committed the misconduct in regards to three different building permits, he should be penalized for his action as to each permit. Accordingly, it is Recommended: That the Respondent be found not guilty of having violated Section 489.129(1)(m), Florida Statutes, as set forth in paragraphs 3 and 5 of the Administrative Complaint. That the Respondent be found not guilty of having violated Section 489.129(1)(i), Florida Statutes, for the misconduct alleged in paragraph 4 of the complaint. That the Respondent be found guilty of having violated Section 489.129(1)(i), Florida Statutes, as set forth in paragraph 6 of the complaint. That the Respondent pay a fine of $1 500.00, as set forth in Rule 21E- 17.001(8), Florida Administrative Code, for his willful violation, on three occasions, of the municipal building code. DONE and ENTERED this 23rd day of February, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0819 Petitioner's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO #1. Rejected. Irrelevant. Not charged in the Amended Administrative Complaint. Rejected. Insufficient competent evidence provided at hearing. Accepted. Accepted except for the allegation that Respondent forged the inspector's signature. Insufficient proof. See HO #4 and #5. Rejected. Insufficient competent evidence provided at hearing. Rejected. Insufficient competent evidence provided at hearing. Accepted. See preliminary matters. COPIES FURNISHED: David M. Gaspari, Esquire Post Office Box 2069 West Palm Beach, FL 33402 Tillack Ram Netram 532 Southeast 18th Place Cape Coral, FL 33904 Fred Seely Executive Director Construction Industry Licensing Post Office Box 2 Jacksonville, FL 32202 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue Whether petitioner's application for licensure as a real estate salesman should be denied because of his alleged criminal record and his false denial (on his application) that he has ever been arrested for or charged with the commission of a crime.
Findings Of Fact On May 17, 1982, petitioner filed an application for licensure as a real estate salesman with the Florida Real Estate Commission. (R-2) Question number six on his application reads: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any muni- cipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the out- come in full. He falsely answered this question, "No." (R-2) On February 7, 1976, he was arrested in West Palm Beach for carrying a concealed weapon, a .38 caliber revolver. (TR.-15) On November 2, 1974, he was arrested for driving while under the influence of alcohol in West Palm Beach. He pled guilty to the charge and adjudication was withheld. (TR.-l6) On March 3, 1973, he was arrested in West Palm Beach for driving while under the influence of alcohol and was later convicted. (TR.-16-17) On June 25, 1965, he was arrested in Palm Beach County for violating his probation. (TR.-l8) In December, 1964, he was arrested in Palm Beach County on charges of breaking and entering a dwelling house with intent to commit a misdemeanor, indecent exposure and malicious trespass. He pled guilty to malicious trespass; the breaking and entering and indecent exposure charges were dropped. (R-5) On December 26, 1962, he was arrested in Palm Beach County on a robbery charge. He was later convicted of accessory after the fact and sentenced to three years in Florida State Prison. (TR.-19-20) On May 3, 1962, he was arrested for and convicted of drunkenness in West Palm Beach. (Tr.-21) On December 14, 1960, he was arrested in West Palm Beach and charged with resisting a police officer, traffic violations and drunkenness. He was later convicted of these charges. (TR.-21-22) His civil rights, automatically suspended when he was convicted of a felony, have been restored and he is now able to vote in Florida. (Testimony of petitioner)
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioner's application for licensure be denied for failure to show that, at this time, he possesses the honesty, truthfulness, trustworthiness, and good character required by Section 475.17(1). However, this denial should not prejudice his right to reapply in the future. DONE and ENTERED this 23rd day of September, 1983, 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 23rd day of September, 1983.
The Issue Whether the Petitioner meets the qualifications for licensure pursuant to Chapter 475, Florida Statutes.
Findings Of Fact On April 2, 1987, in Pinellas County, Florida, the Petitioner entered a nolo contendere plea to a charge of exposure of sexual organs, a violation of Section 800.03, Florida Statutes. On or about August 17, 1987, the Petitioner filed an application for licensure as a real estate salesman. In response to a question involving prior criminal violations, the Petitioner informed the Respondent of the past violation and his nolo contendere plea. On January 5, 1988, through its legal advisor, the Respondent notified the Petitioner that his application for a real estate license was denied because of the nolo contendere plea to the indecent exposure charge. The Petitioner requested a formal administrative hearing. During the administrative hearing, the Petitioner testified that on the date of the alleged criminal violation, he stopped on his way to shopping mall to relieve himself in a public restroom located in Freedom Lake Park. While in the restroom, he was approached by a man who strongly implied he wanted to see the Petitioner's sexual organs. At first, the Petitioner did not respond to the request. He then told the man "no" and went to use the urinal. The other man identified himself as a police officer and placed the Petitioner under arrest for exposure of sexual organs. Once charged with the offense, the Petitioner had to decide whether to contest the charge by requesting a trial or to enter into a plea bargain agreement. The Petitioner was a high school guidance counselor at the time of the arrest. Because of his employment, he was concerned about the notoriety a trial involving sexual misconduct would bring and its damage to his career. He was also concerned about the effects of a trial upon him and his family. The terms of the plea agreement were that if he were to enter a nolo contendere plea, adjudication of guilt would be withheld by the court. He would be fined $150.00, required to seek counseling, and be placed on six months of supervised probation. Upon advice of counsel, the Petitioner chose to enter the plea, and accept the plea bargain agreement.
Findings Of Fact The Defendant, Theodore Michael Lakos, was at all material times, registered with the Florida Real Estate Commission as a real estate salesman. On or about April 20, 1976, a Second Amended Information was filed by the State Attorney for the First Judicial Circuit of Florida against Theodore Michael Lakos, and others in the Circuit Court of Escambia County, Florida. A copy of the Second Amended Information was received in evidence at the hearing as Plaintiff's Exhibit 2. On or about August 25, 1976, Theodore Michael Lakos withdrew his previous plea of not guilty of the charges, and entered a plea of nolo contendere to Counts 1, 2, 3, 4, 6, 8, and 10 of the Second Amended Information. On or about November 9, 1976, Theodore Michael Lakos was adjudicated guilty of the charges alleged in Counts 1, 2, 3, 4, 6, 8, and 10 of the Second Admended Information. Sentencing was stayed for a period of ten years, during which time the Defendant will be on probation under the supervision of the Florida Parole Commission. A copy of the Judgment and Sentence was received in evidence at the hearing as Plaintiff's Exhibit 4. In accordance with the Defendant's plea of nolo contendere, and the court's judgment, it is found that the Defendant, Theodore Michael Lakos, did knowingly, unlawfully and feloniously agree, conspire and confederate with others to commit the felony of breaking and entering, in violation of Sections 833.04 and 810.01, Florida Statutes, as charged in Count 1 of the Second Amended Information. It is found that the Defendant, between March 1, 1975, and up to and including, on or about March 28, 1975, knowingly, unlawfully and feloniously agreed, conspired, and confederated with others to commit the felony of grand larceny, in violation of Sections 833.04 and 811.021, Florida Statutes, as charged in Count 2 of the Second Amended Information. It is found that the Defendant between, on or about March 1, 1975, ad up to and including, on or about March 28, 1975, knowingly, unlawfully and feloniously agreed, conspired and confederated with others to commit the felony of first degree larceny, in violation of Sections 833.04 and 806.01, Florida Statutes, as charged in Count 3 of the Second Amended Information. It is found that the Defendant, between on or about March 29, 1975, and up to and including on or about April 18, 1975, knowingly, unlawfully and feloniously agreed, conspired, and confederated with others to commit the felony of grand larceny in violation of Section 833.04, and 811.021, Florida Statutes, as charged in Count 4 of the Second Amended Information. It is found that the Defendant, on or about March 28, 1975, aided, abetted, counselled, or otherwise procured as a principal in the first degree the commission of a felony, to wit: breaking and entering, in that he aided, abetted, counselled, or otherwise procured others to unlawfully break and enter a dwelling house with intent to commit a felony, to wit: grand larceny in violation of Sections 776.011 and 810.01, Florida Statutes, as charged in Count 6 of the Second Amended Information. It is found that the Defendant on or about March 28, 1975, aided, abetted, counselled or otherwise procured as a principal in the first degree, the commission of a felony, to wit: grand larceny, in that he aided abetted, counselled, or otherwise procured others to unlawfully take, steal, and carry away certain property of the aggregate value of more than one hundred dollars, in violation of Sections 776.011 and 811.021, Florida Statutes, as charged in Count 8 of the Second Amended Information. It is found that the Defendant on or about March 28, 1975, aided, abetted, counselled, or otherwise procured as a principal in the first degree the commission of a felony, to wit: first degree arson, in that he aided, abetted, counselled, or otherwise procured another to willfully and maliciously set fire to a dwelling house in violation of Sections 776.011 and 806.01, Florida Statutes, as charged in Count 10 of the Second Amended Information.
