The Issue The issue is whether Respondent misused her position as an Orlando city commissioner by attempting, on May 6, 2006, to influence how the Orlando Police Department (the police department) handled a routine traffic stop involving her son in violation of Subsection 112.313(6), Florida Statutes (2005).1
Findings Of Fact Petitioner is the state agency responsible for regulating compliance with the Code of Ethics applicable to public officers and employees pursuant to Chapter 112, Part III. At all times material to this proceeding, Respondent has been a public officer, a commissioner of the City of Orlando, Florida. Respondent is African-American, as are her two sons Mr. Sean Lynum and Mr. Juan Lynum. At 12:50 a.m., on May 6, 2006, Officer Matthew Ochiuzzo was on duty for the police department patrolling the Paramore neighborhood in Orlando less than a mile from Rock Lake Drive. Officer Ochiuzzo stopped Mr. Juan Lynum because of an inoperable headlight on the vehicle Mr. Lynum was driving.2 Mr. Lynum was driving Respondent’s vehicle home from a fraternity party to Respondent’s residence on Rock Lake Drive in Orlando, Florida. Mr. Lynum shared the residence with Respondent at the time. Neither Respondent nor Mr. Lynum were aware that a headlight on the vehicle was not working. Mr. Lynum telephoned Respondent from his cellular telephone. He informed Respondent that he was being stopped by a Caucasian police officer and expressed his concern that he was the victim of racial profiling. Respondent telephoned then Chief Michael McCoy of the police department at his home and expressed her concern that Mr. Lynum was the victim of racial profiling. Chief McCoy said he would telephone the watch commander on duty and have him deal with the allegation of racial profiling. Respondent then telephoned Officer Roderick Johnson, the police liaison officer assigned to Respondent and an officer first class in the police department. Officer Johnson was engaged in approved off-duty employment to provide security at a local night club. Respondent had time to disclose the general location of the traffic stop and her concern that her son was being racially profiled when she terminated the conversation to take a return telephone call from Chief McCoy. Respondent clearly intended to influence how the police department handled the traffic stop. Respondent did not expressly request intervention in the traffic stop by Chief McCoy or Officer Johnson, but Respondent admits that the purpose of her action was to alert both men to possible racial profiling and to monitor the traffic stop. Respondent used her official position to influence the traffic stop of her son. Both Chief McCoy and Officer Johnson interpreted a telephone call from a city commissioner at approximately 1:00 a.m. in the morning to be a request for action in her official duty as a commissioner.3 The testimony of Chief McCoy is illustrative. Q. Chief, when you received that call from Commissioner Lynum, did you feel you needed to act based on the phone call? A. She’s a Commissioner, yes. Act then, yes. . . . Q. . . . When you answered that she was a Commissioner, what did you mean by that? How did that impact you? A. I used to make the analogy that our Commissioners were our board of directors, because I spent some time in the private sector, and you know, they drive the direction of the city, police department being part of that. So they’re a Commissioner. They’re elected by the people, so, yeah, pay attention to a Commissioner call, as I would a Mayor call. Q. So when you responded to her, were you responding as a friend or as a commissioner? A. As a commissioner. Transcript (TR) at 258-259 and 277. Officer Johnson took it upon himself to call Officer Ochiuzzo, by radio and then by cell phone, during the traffic stop. A call from a city commissioner at approximately 1:00 a.m. motivated Officer Johnson to take action. Officer Ochiuzzo terminated the traffic stop after discussing the matter with Officer Johnson and never spoke to the watch commander on duty during the traffic stop. Officer Ochiuzzo had intended to issue a traffic summons to Mr. Lynum for an inoperable headlight, no registration, and no proof of car insurance. The benefit sought by Respondent in her attempt to influence how the police department handled the traffic stop involving her son was not to prevent her son from receiving a traffic citation. When Mr. Lynum arrived at Respondent’s home after the traffic stop, Respondent discovered that the headlight on her vehicle was inoperable. She telephoned Officer Johnson and asked him to ensure that a traffic citation was forwarded to her. The benefit sought by Respondent was to prevent racial profiling during an ongoing traffic stop by complaining directly to the chief. That was a special benefit or privilege available to Respondent that was not available to a member of the public through the police department’s bias free policing policy. The police department’s bias free policing policy was drafted by legal counsel for the department and was adopted in June 15, 2004. The policy required a member of the public who alleged racial profiling to file a written complaint on a form provided by the department and required the department to investigate the alleged profiling. Respondent was personally familiar with the police department’s bias free policing policy. Respondent was very active in the community, supported the bias free policing policy, and assisted her constituents in processing profiling complaints. Mr. Lynum later filed a complaint of racial profiling pursuant to the bias free policing policy. The police department investigation exonerated Officer Ochiuzzo. Exoneration means the department found Officer Ochiuzzo to be innocent of the charges in the complaint. Exoneration differs from “not sustained” in that the latter means only that the proof is insufficient to support a finding of guilt. When Respondent telephoned Chief McCoy and her liaison officer at approximately 1:00 a.m. on the morning of May 6, 2006, Respondent acted with wrongful intent for the purpose of benefiting another person from an act or omission during an active traffic stop. Respondent acted in a manner that was inconsistent with her public duties. Respondent testified that she called Chief McCoy and Officer Johnson, not in her capacity as commissioner, but as a mother fearful for the safety of her son. Mr. Lynum testified that he sought his mother’s help out concern for his safety at the hands of a Caucasian police officer. The fact-finder finds the testimony of both witnesses to be less than credible and persuasive. Mr. Lynum was on his cell phone when Officer Ochiuzzo approached the vehicle driven by Mr. Lynum. Mr. Lynum virtually ignored Officer Ochiuzzo. The actions of Mr. Lynum in ignoring an investigating officer risked antagonizing the officer and are inconsistent with a person in fear of physical harm. The testimony of Officer Ochiuzzo is illustrative. Q. So what did you do next? A. I exited my patrol vehicle and I approached Mr. Lynum’s car. . . . Q. Okay. What happened next? A. He was on his cell phone when I approached the window and the window was up, and I told him I was conducting a traffic stop and that I needed his license and registration, proof of insurance, and he didn’t respond. Q. So at the initial approach of the vehicle, did you make any other gestures to get the driver’s attention or did you solely use voice commands? A. Voice commands combined with my patrol car lights and chirping of the siren. Q. So when you made these initial voice commands, did the driver respond? A. No. Q. So what did you do next to get his attention? A. . . . I took my flashlight and I tapped the window to get the driver’s attention and instructed him again that I was conducting a traffic stop and I needed a license, registration, proof of insurance. Q. And at that point did Mr. Lynum engage in the traffic stop? A. No. Q. What did he do? A. He ignored it once again. He was on the cell phone. And so I pulled the door open and I told him that I was conducting a traffic stop. I needed his license, registration, proof of insurance. TR at 35-36. Officer Ochiuzzo returned to his patrol vehicle and began writing a uniform traffic citation when he was interrupted by the radio inquiry, which concluded by cell phone, from the liaison officer for Respondent. Officer Johnson informed Officer Ochiuzzo that Officer Johnson was Commissioner Lynum’s liaison officer and that Officer Ochiuzzo had stopped the commissioner’s son. After the conversation, Officer Ochiuzzo terminated the traffic stop. When Officer Ochiuzzo pointed patrol vehicle lights into the rearview mirror of the vehicle of Mr. Lynum, shined a flashlight beam into the vehicle, and kept his free hand on top of his holstered pistol, it was not a threat to Mr. Lynum. It was standard procedure for traffic stops at that hour. When Officer Ochiuzzo was yelling at Mr. Lynum, it was because Mr. Lynum had ignored the officer’s earlier attempts to redirect Mr. Lynum from the cell phone conversation and had failed to lower the window so the officer would not have been required to yell to be heard. Mr. Lynum is an attorney who is familiar with police procedures during traffic stops through instructions from his father who was a law enforcement officer from 1969 through 1987 and ended his career as the chief of the Wildwood Police Department in Wildwood, Florida. Sean Lynum, Mr. Lynum’s brother, is a former officer in the same police department as Officer Ochiuzzo. Respondent is very active in the community and familiar with police procedure. A common safety precaution for a person who suspects he or she is a victim of racial profiling during a traffic stop is to ensure the site of the stop is well lighted and that the person is in contact by cell phone with a person who can be a witness. Mr. Lynum followed both precautions. He stopped in a well-lit area, and he was on his cell phone. Complaints of racial profiling in the area had declined from 23 the year before Chief McCoy became the chief of the department to a consistent annual range of six to eight. Racial profiling was not an issue in the area until after Mr. Lynum made his complaint. The testimony of Chief McCoy is illustrative. This, after the fact, became quite a community event or issue, which sparked a lot of accusations of racial profiling. Our policy had been in effect as long as it’s been in effect. The year before I was Chief, there was like 23 total racial profiling complaints made. The year I became Chief that dropped to like six or eight and that was-–that number was pretty consistent. Even after we had this community event issue, they still never got over 10, total. The key is that if you have a complaint, you need to follow up on it. If people feel like they were stopped simply because they were-–of their race, then you need to do the form and do it right and the officers know that-–or knew that. Q. So, really, it did not become a community issue until after Commissioner Lynum’s son was stopped, racial profiling? A. That would definitely be my perspective . . . . it was not an issue. TR at 278-279.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order and public report finding that Respondent violated Subsection 112.313(6) and publicly censuring and reprimanding Respondent. DONE AND ENTERED this 23rd day of February, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd of February, 2009.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of the advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structure after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Hayden Burns Building Tallahassee, FlorIda 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 3115 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
The Issue The issue in this case (as stipulated to by the parties) is whether Respondent, Gary Siplin, violated Subsection 112.313(6), Florida Statutes (2008),1 by using his position as state senator to bully a deputy sheriff into yielding to Respondent's desire to access a football stadium parking lot by way of a barricaded route.
Findings Of Fact Respondent is currently serving as a state senator for the State of Florida. He has been in the Florida Senate since his initial election in 2002. Prior to that, Respondent served two years in the Florida House of Representatives. Respondent is a lawyer licensed in the State of Florida. His legal business involves the areas of litigation and general practice. At all times relevant to this proceeding, Respondent was a state senator. On November 18, 2006, Respondent went to a football game being held at the Florida Citrus Bowl site in Orlando, Florida. Respondent was not an alumnus of either of the two schools playing in that game: Bethune-Cookman University and Florida A & M University. Rather, he was attending the game pursuant to an invitation from a group who wanted other attendees to interact with public officials. Respondent had attended this football game on several prior occasions as a guest of the event planners. Respondent and his wife had picked up a package containing their football tickets and a parking pass the night prior to the game. The parking ticket provided a parking spot in close proximity to the stadium. The parking ticket had a map and directions on its reverse side showing how to access the parking area. On the day of the game, Respondent, his wife, sister-in-law, and a niece proceeded to the game. The parking ticket's directions indicated that Respondent should drive east on Carter Street and then turn left onto Rio Grande Avenue to access the designated parking area. As he was going down Carter Street toward his turn, Respondent asked for directions and was told by a police officer/deputy to proceed further east on Carter before turning. Respondent proceeded to Rio Grande Avenue to turn north. However, when Respondent (driving his wife's 2003 Volvo SUV) turned left on Rio Grande Avenue, there was a traffic barrier saying "Road Closed." The traffic organizers had decided to close Rio Grande Avenue due to the large amount of pedestrian traffic expected on that road prior to the game. Respondent pulled his vehicle up to the road barrier and rolled down his window just as a Hispanic female law enforcement officer approached. Respondent identified himself to the officer as "Senator Gary Siplin." The female officer purportedly told Respondent that the parking lot was full. However, the officer did not testify, and there was no non-hearsay evidence presented as to what the officer actually said to Respondent. After the female officer walked away, Deputy Robinson approached Respondent's vehicle. Again, Respondent identified himself as "Senator Gary Siplin."2 Respondent and his wife remember Robinson also telling them that the parking lot was full. Robinson maintains he never told them the lot was full, only that they could not proceed down Rio Grande Avenue because it was being used for pedestrian traffic. At this point in time, it was approximately 1:00 p.m., some three or four hours prior to kickoff for the football game. It is, as Respondent testified, highly unlikely the parking lot would be full at that time. In fact, a picture taken by Respondent's sister-in-law upon their arrival indicates that the lot was essentially empty.3 Therefore, it makes no sense that the law enforcement officers would tell Respondent the lot was full. The deputy's testimony is more credible on the issue of whether Respondent was told that the lot was full. Respondent was told to back his vehicle onto Carter Street and proceed east for approximately two blocks for access to the parking lot. Respondent refused to move his vehicle. He was told at least three or four more times to move the vehicle, but continued to refuse the order. After several refusals, Respondent began to get angry and raised his voice. At that point, Robinson radioed his supervisor, Corporal Russell. Russell, who was at a post a couple of blocks away from the Carter/Rio Grande intersection, walked over to respond to Robinson's call. Once he arrived, Russell was briefed by Robinson, who told him the following: The vehicle at the barrier was being driven by Gary Siplin, a state senator. Siplin had asked several times to speak to Robinson's supervisor. Siplin had been told to proceed down Carter Street to the next entrance to the parking area, but had refused several times. Robinson had decided to issue several citations to Siplin for infractions, including the refusal to obey traffic laws and failure to wear a seat belt. After being briefed by Robinson, Russell approached Respondent's vehicle and introduced himself as Robinson's supervisor. Respondent introduced himself as "Senator Gary Siplin." Respondent told Russell that Robinson would not let him through the barrier. Russell explained again to Respondent why Rio Grande Avenue was closed, i.e., that there was too much pedestrian traffic in the area to safely allow vehicles on that road. Russell asked Respondent to move his vehicle down Carter Street for two blocks to the next parking lot entrance, but Respondent refused. Corporal Russell remembers telling Respondent that a handicapped parking lot was full, but did not tell Respondent that his designated lot was full. Respondent continued to ask for a supervisor. Russell then called his supervisor, Lieutenant Boynes, on his radio. Russell cannot remember if Respondent asked him to call Boynes or whether he did so at his own volition. However, upon talking with Boynes and discussing the situation, Russell opted to allow Respondent through the barricade, rather than placing him under arrest (his other option under the circumstances). Russell opined it was better not to place Respondent under arrest, because it "[p]robably would not be good for our agency or probably good for him or probably good for the Citrus Bowl people who were present there that day." Russell allowed Respondent through the barrier and had him pull over to await the citations that Robinson was writing. It is unclear why Respondent refused to obey the traffic signs and failed to yield to the law enforcement officers' directions. Although his parking pass indicated that Rio Grande Avenue was the route to take, there is no indication that Respondent believed such written instructions superseded traffic laws or officers' instructions. Even if Respondent was being erroneously told that the lot was full, he provided no rational basis for disobeying the law or the instructions from law enforcement officers. Robinson ultimately issued only one citation to Respondent, i.e., for refusal to obey traffic laws. The citation was challenged by Respondent in traffic court and appealed after it was upheld by the traffic court. After filing the appeal, Respondent paid the fine imposed by the court. That is, Respondent ultimately acknowledged violation of traffic laws during the incident discussed above.4 Russell remembers Respondent asking him to call the Orange County Sheriff, Kevin Beary. Russell remembers Respondent saying that he had Sheriff Beary's telephone number programmed into his cell phone. However, Respondent testified that he and the sheriff were political enemies and that he would never have called him. If so, it would not have been in his best interest to call the sheriff under the circumstances extant at that time. If there was indeed enmity between the two men, Respondent's testimony is more credible on this point. At some point in the discussion between Robinson and Respondent, the issue of Robinson's job came up. It is unclear who raised the issue or whether it was made as a threat from Respondent or, conversely, as a challenge by Robinson. The testimony on that subject is contradictory. Mrs. Siplin says that Robinson asked, "So, do you want my job?", but Robinson says Respondent stated, "I'll have your job." There is not sufficient evidence to make a clear finding of fact on this issue. However, taken in light of all the facts and the demeanor of the witnesses, it is more likely that Respondent threatened Robinson than that Robinson brought up the subject as a challenge to Respondent. No vehicles were allowed through the barrier other than the one driven by Respondent. Other cars attempted to travel north on Rio Grande Avenue throughout the day, but they were all redirected back to Carter Street. Only Respondent was allowed through the barrier (for the reasons set forth above). A few days after the football game, Robinson met with other law enforcement officers to discuss the situation involving Respondent. Robinson asked for advice as to whether he should file an ethics complaint against Respondent. A discussion ensued, opinions were gathered, and Robinson (on his own accord), ultimately, decided to file a complaint. The complaint was not filed on behalf of the Orange County Sheriff's Office or the City of Orlando. It is a complaint by a self-described concerned citizen (Robinson). Respondent testified under oath that despite serving one term of office in the Florida House of Representatives and being elected three times to the Florida Senate, he was unaware of, had never read, and doesn't remember ever being given educational training about the Code of Ethics for Public Officers and Employees (the "Code"). Respondent stated only that, "I've heard about it. I haven't seen it." In the Joint Prehearing Stipulation filed in this matter, Respondent acknowledged that he is subject to the Code. However, he stated under oath at final hearing that "I don't know what I stipulated to. The lawyer does. I don't know." The incredulity of this testimony (especially coming from a member of the Florida Bar and a public officer) makes Respondent's statements concerning other facts about the incident less believable. To the extent Respondent's testimony contradicts facts stated by other witnesses, his testimony is given less weight. When asked specifically whether he believed the Code would prohibit him from using his position to influence others or gain a privilege, Respondent would only say, "Like I said, I haven't read the Code of Ethics, you know, so that's my response." Again, Respondent indicates a clear absence of knowledge about the Code or its authority over a person in his position. Respondent seemed nonplussed about the charges against him, stating that he could not even remember what he was charged with in this matter. Nor could Respondent remember what he said under oath during the preliminary ethics investigation underlying the instant case. Further, Respondent could not remember if he attended traffic court to contest the traffic citations (although it was established in the record that he did so and paid the fine which had been imposed). He could not remember the two deputies when they stood up at the final hearing (but remembered what they allegedly told him concerning the parking lot being full). His complete lack of recall of the events makes it difficult to give any of his testimony much weight. In his testimony, Respondent's testimony was not precise and explicit. Respondent was confused about the facts in issue. Upon a comparative consideration of the demeanor of the witnesses, the context of the statements, and the undisputed facts, it is difficult to give any degree of certainty to the testimony of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Commission on Ethics finding that Respondent, Gary Siplin, violated the Code of Ethics for Public Officers and Employees and that a penalty of censure, public reprimand, and attendance at continuing education concerning the Ethics Code is warranted; also, that a recommendation be forwarded to the State Legislature for imposition of an appropriate sanction. DONE AND ENTERED this 20th day of July, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th of July, 2009.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of both signs to include the entire advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structures after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
Findings Of Fact Respondent is a company owned by Jack Williams that leases portable signs to businesses desiring to advertise. These signs are constructed to attach letters to spell out the advertised message on the sign and illuminate the sign at night if desired. The signs are sufficiently small and light that they can be readily moved as the lessee desires. On June 18, 1986, one of Respondent's signs leased to a car dealer was found to be in the DOT right-of-way along U.S. 19, 0.28 miles of Candlewood Drive and in front of the business advertised. The nearest edge of the sign to the highway was 46 feet from the easterly edge of the pavement. The eastern edge of the DOT right of way at this point is 50 feet from the edge of the paved surface of U.S. 19. U.S. 19 is a federal-aid primary highway. Respondent's lease agreement (Exhibit 8) is in the form of a statement billing the lessee of the sign for one month use of the sign. That statement provides it shall be the customer's responsibility to comply with state and local laws and regulations.
Findings Of Fact The sign in question is located one mile west of State Road 79 on Interstate 10. Said sign was photographed by the Department of Transportation sign inspector, who identified and introduced two photographs which were received as Exhibits #1 and #2. Said sign does not bear a permit of the type issued pursuant to Section 479.07, Florida Statutes. Said sign is not located within an incorporated city or town. Said sign bears copy which can be read from the traveled way of Interstate 10. Said sign is located 15.5 feet from the right-of-way of Interstate 10. No substantial and competent evidence was introduced regarding the zoning of the area in which the sign is located or the ownership of the sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department of Transportation take no action regarding the subject sign. DONE and ORDERED this 3rd day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Russell A Cole, Jr., Esquire 206 East Iowa Avenue Bonifay, Florida 32425 Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 John M. McNatt, Jr., Esquire 1500 American Heritage Life Building Jacksonville, Florida 322022
The Issue The issue is whether Respondent obtained a real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact By application attested July 10, 1996, Respondent requested licensure as a real estate salesperson. Question 9 of the application asks: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records may have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." * * * Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent checked the "no" box and did not offer any explanation on the application form. Petitioner issued Respondent a license. After placing it for a month with another broker, Respondent placed the license with Sun Coast Realty Group, Inc., a broker-corporation trading as Century 21--Sun Coast Realty Group, in Fort Myers. Respondent's license remained active until October 6, 1997, when he requested that Petitioner inactivate the license until the pending disciplinary charges were resolved. Respondent's broker testified at the hearing. He testified that the customers were happy with Respondent, who dealt very honestly with the customers. The broker explained that Respondent, not the broker, elected to discontinue practicing real estate sales until the disciplinary matters were resolved, and the broker would rehire him, if Respondent retains his license, following the conclusion of this proceeding. On or about December 19, 1977, Respondent pleaded no contest and was convicted of a misdemeanor of disorderly conduct or breach of the peace in connection with a bar fight in which he was engaged in Connecticut. Then aged 20, Respondent was employed as a bouncer at the bar at which a fight broke out. Several arrests ensued. Respondent did not throw the bar stool that resulted in the injuries. Respondent was fined about $50. About 12 years later, on or about February 1, 1989, Respondent pleaded no contest to misdemeanor battery in Lee County. The court withheld adjudication and placed Respondent on probation for one year. Respondent served the probation without incident. No one was seriously injured in the incident. About three years ago, Respondent attended Charter Glade, where he remained 10 days for substance-abuse treatment. He attended his follow-up therapy, and now speaks to his pastor at church for additional advice. Respondent has not consumed alcohol since then, and he has a wife and two children. Respondent's claim that he did not disclose the criminal matters because he thought they had been sealed or expunged is discredited. Respondent concealed these matters. He did not follow the advice on the application form to ensure that these matters were sealed or expunged. He testified inconsistently at first as to his age at the time of the first incident. On the other hand, Respondent has eliminated the main source of his past problems: alcohol. He has also demonstrated his integrity in the practice of real estate sales.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of a violation of Section 475.25(1)(m), Florida Statutes, imposing an administrative fine of $1000, and suspending Respondent's license for 18 months, with full credit against the suspension for the period since October 6, 1997, that Respondent has voluntarily rendered his license inactive due to the pendency of this proceeding. DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of December, 1998. COPIES FURNISHED: Laura McCarthy Deputy Chief Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Edward McBride Cardillo, Keith & Bonaquist, P.A. 3550 East Tamiami Trail Naples, Florida 34112-4905 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler, Acting Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
