The Issue Whether the Respondent, Omari Murray, committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact At all times material to the allegations of this case, the Petitioner was the state agency charged with the responsibility to administer and enforce the real estate licensing laws found in Chapter 475, Florida Statutes (2004). At all times material to the allegations of this case, the Respondent was a registered trainee appraiser who was subject to the provisions of Chapter 475, Florida Statutes (2004). As an appraiser trainee, the Respondent was required to perform appraisal services through a fully registered real estate appraiser licensed pursuant to Florida law. On or about December 21, 2002, Ms. Cesar paid the Respondent $550.00 to perform an appraisal for her vacant lot located at 4229 Southwest Jarmer Road, Port St. Lucie, Florida. Ms. Cesar paid the Respondent by check drawn on her personal bank account. The check was payable to the Respondent individually. The check was negotiated and the account was debited in the full amount of the check. At the time she tendered the check to the Respondent Ms. Cesar was under the impression that the Respondent was an appraiser who could lawfully perform the appraisal sought. The Respondent did not advise Ms. Cesar that he was only a trainee appraiser and that his supervisor would have to sign any appraisal report generated in connection with the Cesar property. Additionally, at that time, the Respondent’s supervising appraiser, Harvel Gray, was not aware of the appraisal assignment from Ms. Cesar, did not authorize the Respondent to accept the job, and did not authorize the Respondent to accept payment for the appraisal in his individual name. The funds for the Cesar appraisal were not forwarded to Mr. Gray. When Ms. Cesar asked the Respondent for the appraisal she had paid for, the Respondent told her it was illegal for him to give her a copy of the appraisal. She did not understand why she had paid $550.00 and was not provided with a copy of the appraisal. Ms. Cesar had planned to build a house on the vacant lot. She believed the Respondent could facilitate that project as he represented to her that he could get plans drawn, perform the appraisal, and help her through the entire process. In total Ms. Cesar paid the Respondent over $2000.00 to further the construction of the house. On or about July 7, 2003, an authorized representative of the Department, Jonathan Platt, contacted the Respondent and requested that the Respondent provide a copy of the appraisal performed for Ms. Cesar. On or about August 11, 2003, the Respondent produced a “comparative market analysis” report (the report) dated December 27, 2002, for the subject property (Ms. Cesar’s vacant lot). The report was on a Uniform Residential Appraisal Report form and identified the Respondent as the appraiser. Additionally, the form noted the Respondent’s license number as 0005168. The report did not indicate that the report had been reviewed or approved by a licensed appraiser. The report claimed the analysis was both “as is” and subject to the completion of work as specified in plans and specifications. There were no plans or specifications attached or included with the report. The report was not signed by a licensed real estate appraiser. After review of the report, Mr. Platt asked the Respondent for the work file that supported the appraisal report. Requests for the work file were made on August 12, 2003, September 30, 2003, and October 1, 2003. As of the time of hearing the Respondent had not made such file available to the Department. Harvel Gray is a licensed real estate appraiser. Mr. Gray appraises real estate and equipment and knows the Respondent. Mr. Gray met the Respondent when he applied to become a trainee appraiser about five years ago. For approximately three or four months Mr. Gray was technically the Respondent’s supervisor but performed no appraisals with the Respondent. In fact, Mr. Gray terminated his relationship with the Respondent before any appraisals could be performed. Mr. Gray did not know anything about the appraisal that was to be performed for Ms. Cesar. Ken Drummond is also a licensed real estate appraiser. Mr. Drummond knows the Respondent from a Gold Coast continuing education class. Mr. Drummond has never been the Respondent’s supervising appraiser. Mr. Drummond has not performed appraisals with the Respondent. According to licensing records, the only supervising appraiser with whom the Respondent was listed during the pertinent period of time as an appraiser trainee was Mr. Gray. Neither Gray nor Drummond authorized the Respondent to perform an appraisal or complete the report for Ms. Cesar. Neither Gray nor Drummond authorized the Respondent to accept payment from Ms. Cesar for any work. Jonathan Platt, the investigator assigned to this case, spoke with the Respondent and exchanged written information with him. The Respondent did not provide information requested by Mr. Platt and did not explain how the report was generated. According to Mr. Platt the Respondent maintained that Mr. Drummond was his supervising appraiser during the time the Cesar report was performed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Real Estate, enter a Final Order that finds the Respondent guilty of the violations outlined by the Administrative Complaint and revokes his license as a real estate appraiser trainee. S DONE AND ENTERED this 30th day of August, 2005, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 30th day of August 2005. COPIES FURNISHED: Elizabeth Vieira, Director Division of Real Estate 400 West Robinson Street Suite 802 North Orlando, Florida 32801 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Alpheus C. Parsons, Esquire Department of Business and Professional Regulation Hurston Building, North Tower, Suite N801 400 West Robinson Street Orlando, Florida 32801 Omari Murray 201 Southwest 11th Avenue Boynton Beach, Florida 33435
The Issue The issue in this cause is whether the Respondent's real estate license should be suspended, permanently revoked, or otherwise disciplined based upon alleged violations of Chapter 475, Florida Statutes.
Findings Of Fact Since 1977, the Respondent has been a licensed real estate salesperson in the State of Florida having been issued license number 0167049. The last license issued to the Respondent was as a salesperson for Tony Bucci Realty, Inc., 2216 East Olive Road, #108, Pensacola, Florida 32514. On November 2, 1983, a criminal information was filed in the Circuit Court of Escambia County, Florida, charging the Respondent as follows: Between February 1978 and May 1978, at and in Escambia County, Florida and Orange County, Florida: did unlawfully agree, conspire, combine, or confederate with another person or persons, to wit: Kenneth Massoud, to commit a criminal offense, to wit: counterfeiting of United States Currency. The charge constituted a criminal violation of Section 831.18, Florida Statutes, and Subsection 777.04(3), Florida Statutes, (conspiracy). At the time, counterfeiting was a felony and conspiracy to counterfeit was a misdemeanor. On January 12, 1984, the Respondent pled nolo contendere to the charge of conspiracy to commit counterfeiting, a violation of Section 777.04(3), Florida Statutes, a first degree misdemeanor, and was adjudged guilty and sentenced to six months in the county jail. The Respondent denied that he was guilty of the charges contained in the information or the charge to which he pled. On or about June 28, 1985, the Florida Bar filed a complaint against the Respondent seeking to disbar him for his conduct in the counterfeiting case. Additionally, the Respondent was charged with trust account irregularities related to his practice of law. The Respondent was found to have violated disciplinary rules relating to trust accounting procedures, the accounting of clients' interest shortages. Likewise, he was guilty of the charge of conspiracy to counterfeit. The Supreme Court of Florida found that the referee's findings of fact and recommendations of guilt were amply supported. Based on these findings, on October 2, 1996, the Respondent was disbarred from the practice of law in Florida. However, the Respondent testified that he is eligible to apply for re On June 13, 1990, an information was filed charging the Respondent with one count of possession of more than 20 grams of cannabis, in violation of Subsection 893.13(1)(f), Florida Statutes, a third degree felony, and one count of possession of marijuana with the intent to sell, deliver or manufacture, in violation of Subsection 893.13(1)(a), Florida Statutes, punishable as a third degree felony. On October 2, 1990, the Respondent entered a plea of nolo contendere to possession of a controlled substance without a prescription and possession of a controlled substance with the intent to sell or deliver. The court withheld adjudication and placed the Respondent on supervised probation for two years. At no time material hereto did the Respondent notify the Florida Real Estate Commission in writing of having entered a nolo contendere plea to a felony or to a misdemeanor. Respondent did not notify the Commission because he misunderstood his obligation to do so since he had not pled guilty nor been convicted of a felony. To his credit, he has not been subject to discipline or sanction by the Florida Real Estate Commission since his initial licensure. Finally, it is likely that the loss of his real estate sales license will leave Respondent in a more destitute position than his already extremely low income status renders him since Respondent's main income is from his employment as a licensed real estate salesperson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Florida Real Estate Commission finding the Respondent: Guilty of having been convicted or found guilty, regardless of adjudication, of a crime which directly relates to the activities of a licensed real estate salesperson or involves moral turpitude or fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes, as charged in Count I; Guilty of a course of conduct or practices which shows that the Respondent is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom he may sustain a confidential relation, may not safely be entrusted to him, in violation of Subsection 475.25(1)(o), Florida Statutes, as charged in Count II; Guilty of not having informed the Florida Real Estate Commission in writing within thirty (30) days of having pled guilty or having been convicted of a felony and, therefore, is in violation of Subsection 475.25(1)(p), Florida Statutes, as charged in Count III; and Guilty of having had another state agency suspend the license or registration of, or impose a penalty against it, as set forth in Subsection 475.455(2), Florida Statutes, and, therefore, in violation of Subsection 475.25(1)(e), Florida Statutes, as charged in Count IV. It is FURTHER RECOMMENDED that the Final Order should further order all of the Respondent's real estate licenses, registration, certificates, and permits be revoked. DONE AND ENTERED this 21st day of April, 1994, in Tallahassee, Florida. DIANNE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3843 Petitioner's Proposed Findings of Fact The facts contained in paragraphs numbered 1, 2, 3, 4, 5, 6, 7, 8 and 9 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material. Respondent's Proposed Findings of Fact The facts contained in paragraphs 1, 2, 3, 5, 8 and 11 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material. The facts contained in paragraphs 4, 6, 7, 10 and 12 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraph 9 of Respondent's Proposed Findings of Fact are adopted, except for the last sentence, which is rejected. COPIES FURNISHED: James H. Gillis, Esq. Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900 Eric Eggen, Esq. Suite 347, Blount Building 3 West Garden Street Pensacola, FL 32501 Darlene F. Keller, Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, FL 32802-1900 Jack McRay, Esq. General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973). Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 William B. Seidel, Esquire Justice Building 524 South Andrews Avenue Ft. Lauderdale, Florida 33301
Findings Of Fact At the hearing Petitioner presented evidence of service of the complaint and notice of hearing by mailing same, to Respondent's last address reported to the Real Esate Commission, by registered mail as provided by s. 475.26 Florida Statutes. Accordingly I find Respondent was duly subjected to the jurisdiction of the hearing officer and of the Real Estate Commission. Thereafter Petitioner presented as Exhibit 4, the Certification of the Executive Director of the Florida Real Estate Commission that registration certificate number 0119992 was issued to Jesse E. Moore as a real estate salesman on January 30, 1974, that a non-active salesman's registration was issued on June 10, 1974 to expire September 30, 1974, and a copy of his application for registration subscribed and sworn to by Moore on July 9, 1973. Thereon Respondent listed only two offenses under question 9, viz. DWI and a bad check offense. Petitioner submitted Exhibits 5, 6, and 7 which were only admitted into evidence. Exhibit 5 shows that on November 20, 1961 Gene Moore was found guilty in the County Judge's Court of destroying personal property and fined $15.00 to include $12.50 costs. Exhibit 6, a Justice of the Peace Docket Sheet purports to show that on September 11, 1969 Jesse E. Moore was charged with failure to report sales tax, and Exhibit 7, a similar docket sheet purports to show that on October 30, 1969 Jesse E. Moore was again charged with failure to report sales tax. Since both Exhibits 6 and 7 show the same amount of sales tax it may be assumed that they relate to the same offense. However, Exhibit 6 indicates that the bond posted in the amount of $12.50 was forfeited and the final entry on Exhibit 7 is that the charge (if such it be) was dismissed by the judge. Although these docket sheets are subject to some question regarding their relevance in proving that the person named thereon was charged with an offense against the laws of Florida, for the purpose of this Recommended Order it is found that they do prove that Jesse E. Moore was charged with such offenses.
Findings Of Fact The Respondent, Leonard Fernandez, is a licensed real estate salesman, holding license number 0145203. In July and August of 1979, the Respondent was employed as a mortgage solicitor for Southeast Mortgage Company in Broward County, Florida. Alan Edwards was the Respondent's supervisor during this time period. In July, 1979, the Respondent advised Alan Edwards that he was going to purchase property, and requested that Mr. Edwards loan him money for a short period of time. Mr. Edwards loaned the Respondent $4,000 under a verbal agreement that the Respondent would repay the loan within 60 days. When the Respondent failed to repay this loan as agreed, Mr. Edwards had the Respondent sign a promissory note in the amount of $4,000. In an attempt to repay a portion of this note, the Respondent gave Mr. Edwards a check in the amount of $1,800 on or about August 29, 1979. Mr. Edwards presented the check for payment, but it was returned unpaid because the Respondent had stopped payment on it. When Mr. Edwards contacted the Respondent about the check, the Respondent stated that he had expected some funds from a relative, and when he did not receive this money, he stopped payment on the check. The Respondent told Mr. Edwards that he would give him a cashier's check to replace the $1,800 check that had been returned unpaid, but the Respondent never provided the cashier's check. Instead, the Respondent, in September, 1979, gave Mr. Edwards several postdated checks drawn on account number 002312352 at Southeast Bank of Broward County. The purpose of these checks was to repay, the $1,800, after which the Respondent was to pay the remaining debt due under the note. In November, 1979, Mr. Edwards presented the first of the postdated checks, dated November 15, 1979, to Southeast Bank for payment, but was notified that the Respondent's account upon which all the postdated checks had been issued, was closed. When the bank failed to honor this first check, Mr. Edwards sent a notice of dishonored check to the Respondent by certified mail. The return receipt indicates that the Respondent received this notice. In December, 1979, and in January and February of 1980, Mr. Edwards presented to Southeast Bank the postdated checks that Respondent had given him for these months. On each occasion the bank informed Mr. Edwards that the Respondent's account was closed. Mr. Edwards sent the Respondent notices of dishonor of these checks, which the Respondent received. Mr. Edwards never received any payment of the debt owed by the Respondent. On January 7, 1980, in Dade County Circuit Court, the Respondent pled nolo contendere to two counts of conspiracy to sell, deliver or possess with intent to sell or deliver, cocaine, and was found guilty, placed on one year probation, and ordered to pay $2,400 in restitution. On February 29, 1980, the court withheld adjudication on this charge.
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that license number 0145203 held by the Respondent, Leonard Fernandez, be revoked. DONE and RECOMMENDED this 9th day of June, 1983 in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 1983. COPIES FURNISHED: Tina Hipple, Esquire Post Office Box 1900 Orlando, Florida 32802 Mr. Leonard Fernandez 10024 S.W. 2nd Terrace Miami, Florida 33174 William M. Furlow, Esquire Post Office Box 1900 Orlando, Florida 32802 Harold Huff, Executive Dir. Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802
Findings Of Fact Respondent, on March 14, 1974, filed his application for registration as a real estate salesman with the Florida Real Estate Commission. The application was approved and he received his registration on July 8, 1974, and has been continuously registered with the Commission since that time (Petitioner's Exhibit 1.) In the Application for Registration, Question 9 and Respondent's answer thereto were 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 Traffic offenses: see attached sheet, one misdemeanor, City of North Miami Beach, Case 23855. (Petitioner's Exhibit 1,2). On August 17, 1973, Respondent was arrested in Dade County, Florida, and charged with the possession and sale of cocaine in violation of Section 893.13(1)(a), F.S. On May 31, 1974, Respondent was acquitted in the Circuit Court of the Eleventh Judicial Circuit of Florida, In and for Dade County, of the charge of sale or delivery of a controlled substance. In the same court, on July 12, 1974, he was found guilty of the charge of possession of a controlled substance, but adjudication of guilt was withheld and Respondent was placed on probation for a period of three years. (Petitioner's Exhibits 3, 4, 5, 6.) Petitioner testified that he had filed a prior application for registration as a real estate salesman in 1972 which was not approved because he did not pass the written examination. In 1974, he secured a blank application form which he gave to his father, Hal Sehres, to have typed for him. When it was prepared, he scanned it without reading it thoroughly and, since it seemed to be the same as his first application, he signed it and his father thereafter dispatched it to the Commission. The father testified that he had given the blank application to his secretary, along with the 1972 application, and asked her to type it. He also provided her with minor changes in address and information concerning the misdemeanor offense which had not occurred at the time the 1972 application had been executed. Although the father testified that he was aware his son had been arrested in 1973 for the sale and possession of cocaine, and that he meant to include it as part of the answer to Question 9, he knew that at that time disposition had not yet been made of the charge, and therefore, believed it was an honest mistake that he had not included it on the application.
Recommendation That the registration of Irving Paul Sehres as a real estate salesman be revoked, pursuant to Section 475.25(2), Florida Statutes. DONE AND ENTERED this 11th day of February 1976 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February 1976. COPIES FURNISHED: Louis B. Guttman, III, Esquire 2699 Lee Road Winter Park, Florida 32789 Seymour Silverman, Esquire 420 Lincoln Road Miami Beach, Florida 33139
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Department of Business and Professional Regulation, Florida Real Estate Appraisal Board (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent, Iris Adames, is now and was at all times material hereto, a registered real estate appraiser in the State of Florida, having been issued license number RI0003454. On or about March 21, 1996, Respondent filed an application (dated March 8, 1996) with the Department for licensure as a registered real estate appraiser. Pertinent to this case, item 11 on the application required that Respondent answer yes or no to the following question: Have you ever 1) been convicted of a crime, 2) pled nolo contendere to any crime? (This question applies to any violation of any municipality, county, state, or nation, including traffic offenses --but not parking, speeding, inspection, or traffic signal violations-- regardless of whether you were placed on probation, had adjudication withheld, were paroled or were pardoned.) Respondent responded to the question by checking the box marked "N[o]." The application concluded with the applicant's signature immediately below the following affirmation: . . . I have read the questions in this application and have answered them completely and truthfully to the best of my knowledge. . . . Contrary to Respondent's response to item 11 on the application, the proof demonstrates that on October 23, 1995, Respondent pled nolo contendere to the crime of uttering a worthless check, a first degree misdemeanor, in the Circuit Court, Eighteenth Judicial Circuit, Brevard County, Florida, Case No. 94-23154-CF-A. The court entered an order withholding adjudication of guilt, placed Respondent on probation for a period of six months, and imposed a fine and costs totaling $105.65. On September 18, 1997, the Florida Department of Business and Professional Regulation, Division of Real Estate (Florida Real Estate Commission or FREC) issued an Administrative Complaint against Respondent, as a licensed real estate salesperson. That complaint alleged, in pertinent part, as follows: At the time Respondent made application for a real estate license, Respondent was asked to indicate whether or not [s]he had "ever been convicted of a crime, found guilty, or entered a plea 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 . . . without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned." Respondent checked the "No" box. (Licensure Application, at Question 9). Respondent swore and attested that all answers and information contained in h[er] application were true and correct. Respondent's signature was duly notarized. On or about October 23, 1995, Respondent entered a plea of nolo contendere to one count of writing a worthless check, a first degree misdemeanor (§ 832.05, Fla. Stat.) A true and correct copy of the Order of Judgment is attached hereto, incorporated herein and made a part hereof by reference as Administrative Complaint Exhibit 2. Further, in connection with this investigation, mail addressed from Petitioner to Respondent was returned by the U.S. Postal Service noting that Respondent has moved without any forwarding address. COUNT I Based upon the foregoing, Respondent is guilty of obtaining a license by means of fraud, misrepresentation, or concealment in violation of § 475.25(1)(m), Fla. Stat. COUNT II Based upon the foregoing, Respondent is guilty of failing to timely advise Petitioner of a change of mailing address in violation of Rule 61J2-10.037, Fla. Admin. Code and, therefore, in violation of § 475.25(1)(e), Fla. Stat. WHEREFORE, Petitioner respectfully requests the Florida Real Estate Commission to issue a Final Order as final agency action finding the Respondent(s) guilty as charged. The penalty for each count or separate offense may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any of or all of the above penalties as provided by § 455.227 and § 475.25(1), Fla. Stat. and Fla. Admin. Code R. 61J2-24.001. In addition to the foregoing, Petitioner requests an award of costs as provided by § 455.227(3), Fla. Stat. Respondent did not formally respond to the Administrative Complaint and on February 18, 1998, the Florida Real Estate Commission held a hearing on Petitioner's Request for an Informal Hearing and Motion for Final Order. Respondent was served with a copy of the notice of hearing and failed to appear. By final order dated February 18, 1998, and filed March 9, 1998, the Florida Real Estate Commission resolved the case, as follows: Upon a complete review of the evidence presented by the Department of Business and Professional Regulation, Division of Real Estate, the Florida Real Estate Commission finds: That the Respondent was properly served with the Administrative Complaint and failed to request a hearing or otherwise respond to the service of Administrative Complaint. See s. 120.60(5), Florida Statutes, and Rules 28- 5.111 and 28-6.009, Florida Administrative Code. That there are no disputed issues of material fact and, therefore, the Petitioner's Motion for an Informal Hearing, pursuant to s. 120.57(2), Florida Statutes, is granted. That the Petitioner has established a prima facie case. That the facts and legal conclusions contained in the Administrative Complaint are adopted as true and that violations of Chapter 475, Florida Statutes, have occurred, as stated in the Administrative Complaint, a copy of which is attached hereto as Exhibit A and made a part hereof. Therefore, the Commission ORDERS that the license of Iris Amor Adames be revoked. This Order shall be effective on date of filing with the Clerk of the Department of Business and Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure. Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Business and Professional Regulation, at Suite 309 North Tower, 400 West Robinson Street, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal. In her response to Count I of the Administrative Complaint, and again at hearing, Respondent explained she entered the plea of nolo contendere to the worthless check charge based upon advice of her court-appointed counsel even though (in her opinion) she was innocent of the charge. As for her negative response to the question posed on the application, Respondent averred she understood the judge to have directed her attorney to have her records sealed, she assumed he had done as directed, and consequently gave what she understood was an appropriate response to the question on the application. See Section 943.059(4), Florida Statutes. Here, Respondent's explanation for her failure to disclose her plea on her application is credited, and it is resolved that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing the application. In so concluding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter (and the propriety of her response to the question on the application) was, given her unfamiliarity with such matters, reasonable. 1/ Count II of the Administrative Complaint sought to take disciplinary action against Respondent based on the Final order of the Florida Real Estate Commission (FREC) which had disciplined (revoked) Respondent's licensure as a real estate sales person. As heretofore noted, that final order was premised on Respondent's failure to respond to a two-count Administrative Complaint. Count I was predicated on the same issue raised by the Department in the instant case, and Count II was premised on Respondent's "fail[ure] to timely advise [FREC] of a change in her mailing address." Here, Respondent explained her failure to respond to the FREC complaint as follows: . . . when I called Tallahassee, they told me that you have 48 hours to respond, or get a lawyer. I say excuse me, I cannot just go and get a lawyer. Because, why? Because, now in 1998, since December 1997, I've been into a domestic violence case, and I almost -- Me and my daughter almost got killed. And, in the meantime, the father of my child took my car, took every means for me to make my living. I was almost fighting all the time. December, January, February, I was fighting eviction. I was fighting the court. And, all the problems. And, I have all the paperwork here. And, I cannot take more stress. Now, you ask me my life -- My life, and the life of my child is priority. I cannot just go, and hire a lawyer. I don't have the money. I don't have the means. You have to give me more time. And to say that I am sorry it's only 48 hours, you should had [sic] been in response to this before, and that's it. When she told me that, what else can I do? So, I said well, fine. One day I will go back, and try to reopen the case. There is nothing that I can do at this moment. (Transcript, pages 28-30.) With regard to her failure to keep FREC informed regarding her current address, Respondent explained: The reason I didn't keep changing my addresses is because my realtor appraiser license, the person who supervised my work, Gary Eilen, he's the father of my child, he's the person who I get the injunction for. That's why sometimes I just tried to disappear from his life. And, when -- That's one of the complaints that I don't keep moving with my addresses, but he [could] get it from the state [if she informed the state of her new address. Therefore, for safety reasons, she chose not to notify FREC of her new address]. (Transcript, page 39.) Respondent's testimony was candid and credible, and her domestic problems (at the time of the FREC proceeding) well- documented. See Respondent's Exhibit 4. Had Respondent the means and opportunity to contest the FREC complaint, the conclusion of that proceeding would, most likely, have mirrored the conclusions reached in this case. In sum, given the conclusion reached here that (by her response to the application at issue in this case) Respondent did not intend to mislead or deceive the Department, a de minimus penalty should be imposed as a consequence of the FREC Final Order, which was essentially entered by default and premised on the same issue (of non- disclosure) raised in this case (and resolved favorably to the Respondent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent not guilty of violating of Subsection 475.624(12), Florida Statutes, as alleged in Count I of the Administrative Complaint. It is further RECOMMENDED that the final order find the Respondent guilty of violating Subsection 475.624(6), Florida Statutes, as alleged in Count II of the Administrative Complaint, and that for such violation Respondent receive a reprimand. DONE AND ENTERED this 25th day of October, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 25th day of October, 1999.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found. Respondent Villanueva was registered as a real estate salesman on July 12, 1974. For the registration year October 1, 1976, through September 30, 1977, his status changed to a nonactive salesman. Upon respondent's plea of guilty to the offense of possession of marijuana in Case No. 74-725C, the Circuit Court of Hillsborough County entered an order on June 7, 1974, withholding adjudication of guilt and placing respondent on probation for a period of one year. By an administrative complaint filed on October 7, 1976, the Florida Real Estate Commission charged respondent with being guilty of a crime of moral turpitude, fraudulent or dishonest dealing in violation of Florida Statutes s475.25(1)(e). The matter was referred to the Division of Administrative Hearings for a hearing, and the undersigned was duly designated as the Hearing Officer. On March 31, 1977, the Circuit Court of Hillsborough County entered an order on respondent's motion to withdraw his plea of guilty previously entered in Case No. 74-725C. By this Order, it was adjudged that the plea of guilty previously entered "be and the same is hereby stricken from the records and shall be of no force and effect and in lieu thereof a plea of nolo contendere is accepted in this cause." The Court reconsidered, and reaffirmed its action taken with regard to sentence.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the administrative complaint filed by petitioner on October 7, 1976, be dismissed. Respectfully submitted and entered this 12th day of May, 1977, in Tallahassee, Florida. DIANE D. TREMOR 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 12th day of May, 1977. COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 William F. Garcia, Esquire 512 East Kennedy Boulevard Tampa, Florida 33602 ================================================================= AGENCY FINAL ORDER ================================================================= August 4, 1977 TO: Renata M. Hendrick, Supervisor FM: Manuel E. Oliver, Staff Attorney, Legal Section RE: PD 3024 Richard R. Villanueva Registration Certificate No. 0136894 Attached please find registration certificate in the name of Richard R. Villanueva, No. 0136894. The effective date of the Final Order is August 11, 1977, however, this certificate was received by us on Monday, August 1, 1977, and therefore his suspension period will begin on that date, and end on September 1, 1977 at which time he may re-apply for registration with the Florida Real Estate Commission. Also attached for your reference and record is a copy of the Final Order filed by the Commission on July 12, 1977.* * NOTE: The Attachment is not on file with this Division and therefore not a part of this ACCESS document. The July 12, 1977 date has been used as the Agency Final Order Issue date in the ACCESS index.
Findings Of Fact During times material to the allegations of the administrative complaints filed herein, the Respondents were registered real estate salesmen in the employ of Theodore Dorwin, a registered real estate broker, and at all times material herein, Darwin was the active firm member broker for Intermart, Inc. Raymond Lewis, a salesman employed by Dorwin during the period December, 1975 through mid February, 1976, as a real estate salesman, was initially employed by Florida Landowners Service Bureau. During mid February, 1976, he testified that the name Florida Landowners Service Bureau was changed to Intermart, Inc., and that approximately during this period, he left the employ of Intermart, Inc. He testified that the offices were situated on northwest 79th Street, which consisted of a large room containing six cubicles where salesmen manned the telephones in the cubicles during the hours of approximately 6:00PM through 10:30PM during week days and during the early afternoon and evening hours on weekends. Salesmen were given lead cards which were apparently compiled from the county tax rolls from which a list was given containing out of state landowners. Employees, based on a "pitch" card called out of state land owners to determine their interest in selling their property. He described the procedure as a "front" when an out of state landowner was called to determine interest in selling their land. The "close" procedure was a method whereby those property owners who had displayed some interest in selling their properties were mailed a packet of materials which, among other things, contained a listing agreement. Salespersons were compensated approximately $100 to $125 for each listing secured by an executed listing agreement which in most instances represented approximately one third of the listing fee. During the course of a normal day, salesmen would contact approximately thirty landowners and they would be given estimates of the prospective selling price of their land based on the location of the property and the length of time that the owner had held it. The testimony of Lewis, which is representative of that given by later witnesses including Jeffrey Barker, August Graser, David Cotton and Henry Halar (all salesmen employed by Dorwin) reveals that property owners were called to determine their interest and if interest was noted, follow-up calls would be made after a packet of materials was sent to interested landowners. After a listing arrangement was obtained, salesmen were compensated by payment of an amount representing approximately one-third of the listing fee. In the case of a listing fee obtained by two or more salespersons, the fee (commission) was divided according to the number of salespersons instrumental in obtaining the listing. Each salesman who testified indicated that they made no guarantee that a sale would be consummated within a definite period nor were they familiar, in any particulars, with the brokerage efforts to sell the properties of owners who listed their property with Intermart. Theodore Dorwin, the active firm member broker for Intermart, Inc., was subpoenaed and testified that he had no copies of the records which were subpoenaed showing the operations of Intermart, Inc. In this regard, Raymond Lewis also testified that he had no corporate records respecting Intermart. Both witnesses testified that all corporate records of Intermart had been subpoenaed and were in the custody of the Attorney General for more than one year. Dorwin refused to give any testimony respecting the operational workings of Intermart, Inc., based on fifth amendment self incrimination grounds. The Commission's counsel took the position during the course of the hearing that Mr. Dorwin had waived any and all fifth amendment rights or privileges by virtue of having personally testified in a similar matter before the Florida Real Estate Commission in a proceeding undertaken to revoke or suspend his license as a real estate broker. Having voluntarily taken the stand in that proceeding, the Commission concludes that he is not now entitled to any fifth amendment protections. As evidence of Mr. Dorwin's having voluntarily taken the stand in the prior proceeding, excerpts of the testimony from that proceeding was introduced into evidence. (See FREC Exhibit number 8). Having considered the legal authorities and the arguments of counsel, the undersigned is of the opinion that testimony given by a party in a separate proceeding to which the Respondents were not party to and of which the Respondents had no notice of cannot serve in lieu of evidence on which findings of fact can be based to substantiate allegations pending in the instant case. To do so, would possibly leave open the door for highly prejudicial and damaging testimony to which the Respondents here had no opportunity to rebut, cross examine or otherwise explain, all of which is inherently destructive of their basic rights, fairness and fundamental due process. The cases of Hargis v. FREC 174 So.2d 419 and Vann, 85 So.2d 133 are not deemed inapposite to the conclusion reached here. The fact that the State's Attorney General is currently conducting an investigation into the operations of Intermart makes clear that the possibility of criminal action or other sanctions exist (e.g. tax problems). For these reasons, I conclude that Dorwin's testimony in a prior proceeding, amounts to no waiver of his constitutional privilege. For these reasons, exhibit number 8 will not be considered as evidence herein. Having so concluded, the record is barren of any evidence, hearsay or otherwise, which would tend to establish in a competent and substantial manner, that the Respondents herein had engaged in conduct alleged as violative of Chapter 475.25, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is: RECOMMENDED that the administrative complaints filed herein be dismissed in their entirety. RECOMMENDED this 18th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
