The Issue Whether petitioner's application for licensure as a real estate salesman should be denied because he allegedly lacks the requisite honesty, trustworthiness, truthfulness, good character, and good reputation for fair dealing.
Findings Of Fact On June 10, 1983, petitioner filed an application for licensure as a real estate salesman with the Florida Real Estate Commission. Question No. 6, on the application, reads: Have you ever been arrested for, or charged with the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the outcome in full. Question #6 was answered by Petitioner as follows: Feb. 11, 1979 arrested - (hit & run & possession of cocaine) [sic] Case #79521C. In hit & run charge - (felony was dropped) In the cocaine [sic] charge 3 yrs. probation (Aug. 1, 79, Aug. 1, 82). Also (July 11, 80) went to court for loitering or prowling charge - Pleaded no contest and paid $25 court cost - Case No. 80-4630mm. On August 17, 1983, the Commission tentatively denied his application because of his criminal record disclosed by this answer to Question No. 6. His answer was truthful and correct. On February 11, 1979, he was arrested in Lake Worth, Florida, and charged with possession of cocaine and hit and run. The hit and run charge was dropped and, on August 1, 1979, he pled guilty to the charge of possession of cocaine. He was adjudged guilty and sentenced to three years of probation. On April 22, 1980, while on Probation, petitioner, was arrested in Boynton Beach, Florida, charged with loitering or prowling, and later convicted. II. Petitioner, 22, was 18 years old in 1979, when he was arrested, and convicted of possessing a small amount of cocaine. The seriousness of his loitering or prowling conviction, which occurred in the next year, is revealed by the minimal sentence he received--a $25 fine. That was his last unlawful act, and it occurred almost four years ago. During the last two years, his life and character have changed dramatically. He avoids illicit drugs; he works 60 hours a week as a salesman in a West Palm Beach furniture store; and he is the sole support for his 2 year old daughter, Keisha. Both he and his friends attribute his change in lifestyle and character to the love and responsibility he feels for Keisha, whose mother left him approximately a year ago. Two character witnesses, admittedly his friends, know petitioner to be an honest, trustworthy, and straight-forward person. They have been impressed by his willingness to accept responsibility for his young daughter and raise her almost single-handedly; by his willingness to work hard as a salesman and improve his lot. Both witnesses are reputable real estate brokers or salesmen in Florida. One has been in the real estate business for 11 years, is president of the largest realtor office in Palm Beach County, does a real estate radio talk show, and teaches and publishes articles on investing in real estate. He has known petitioner for about three years and stated, without hesitation, that he would hire petitioner if he obtains a real estate license. The other witness, licensed since 1977, has known petitioner since boyhood and believes that respondent would make a good real estate salesman. The opinions of these character witnesses are persuasive and supported by other convincing evidence. Until recently, when he began working at a West Palm Beach furniture store because of the opportunity for increased sales, he had worked at a Lake Worth furniture store for 3 and 1/2 years. He began as a delivery boy, was promoted to part-time sales, then full-time sales. He opened the store four to six days a week. For the last four years, he has been a stable, productive and, by all accounts, reliable employee. The Commission has not alleged or shown otherwise. Petitioner's completion of his application, and his candor and demeanor at hearing, provide further evidence of his character and honesty. On his application he truthfully and fully disclosed his previous arrests and convictions. At hearing, he candidly admitted his past indiscretions or unlawful acts, and expressed a sincere desire for an opportunity to become a real estate salesman: Yes, I would very much appreciate an opportunity to take the test. Like I say, my four years is a very long time. I don't know if it is for most people. It's been a long time for me. My lifestyle, you could really call it boring. Like I say, I am working sixty hours a week and taking of the business with the baby just about the rest of the time, and ninety percent of my spare time is spent with her. I am trying to prove something to you today that I already know in my heart, and that is that I would not cheat anybody and I do have a general fair and loving outlook on life. That's all. (TR.-28) Based on the above, it is concluded, as an ultimate finding, that petitioner is honest, truthful, and trustworthy, and has good character and reputation. His conduct, over four years, demonstrates that he possesses these qualities. Two licensed real estate professionals, aware of his past misdeeds, enthusiastically vouch for his good character and ask that he be given an opportunity to become a salesman. It appears likely that his licensing, should he pass the examination, will not endanger the interests of the public or real estate investors.
Recommendation Based on the foregoing, it is RECOMMENDED: That petitioner be found qualified, under Section 475.17, and that, upon passing the required examination, he be licensed as a Florida real estate salesman. DONE and ENTERED this 16th day of February, 1984, 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 16th day of February, 1984.
Findings Of Fact Petitioner graduated from the University of Texas at El Paso in 1976. Since that time she taught school in Texas for six years, entered a stockbroker training program, qualified, but did not work as a stockbroker. She completed one semester of pre-law before moving to Florida in 1983. Since her arrival in Florida she ran an antique restoration business, taught at a private school for girls, and did a lot of volunteer counseling services principally in the evenings in group sessions. Her primary interest in the field of counseling has been to help rape victims and abused children. While carrying out these counseling services, Petitioner came into contact with a family of three children, the father of whom had recently remarried after the death of their mother. They were experiencing difficulties with their stepmother, and ultimately the father sided with his children and separated from the new wife. Although Petitioner has never met this woman, she evidentally blamed Petitioner for her failed marriage and commenced a program of harassment of Petitioner that included threatening phone calls, discontinuance of Petitioner's telephone service, and access to confidential information about some of Petitioner's clients she was counseling. Unable to get any protection from the police absent some overt act by the harasser, Petitioner succumbed to the pressure and in desperation, paid two young men $100 to rattle the woman's door and tell her to leave Petitioner alone. The two men did not carry out the intimidation and shortly thereafter Petitioner notified the police of her plans. She was subsequently arrested and brought to trial on a charge of solicitation to commit burglary. Upon advice of counsel, she pleaded guilty, adjudication of guilt was withheld by the court, and she was placed on probation for four years. In her application for licensure Petitioner accurately reported this incident. Petitioner has never before been arrested or otherwise involved with the police on the wrong side of the law. She has been an exemplary parolee and her probation will likely be reduced to two years if Petitioner continues on her present course. Since this incident Petitioner has been named guardian advocate for a party placed in involuntary placement due to incompetence. Raul Martin, a registered real estate broker, has known Petitioner and members of her family for many years. He is fully aware of the criminal charges that were brought against Petitioner and that as supervising broker, he would be responsible for her actions as a real estate salesman. He will hire her as a salesman if she is allowed to take, and successfully passes, the real estate examination for salesman.
Findings Of Fact On November 2, 1977, Marin completed the application for registration as a real estate salesman and forwarded it to the FREC. The application was received December 27, 1977. The application contains the following question. 6. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned, or parolled? Marin answered the question with the word "No". However, the evidence shows that Marin was arrested December 31, 1974, with the crime of grand larceny which charge was reduced to petty larceny. It was Marin's understanding that his arrest record had been expunged by an attorney hired for that purpose when, in fact, it had not. It was for this reason that Marin answered the foregoing question in the negative.
The Issue Whether Respondent, a licensed real estate broker, committed the offenses alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to regulate the practice of real estate in the State of Florida pursuant to Chapters 455 and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code. Petitioner's responsibilities include the prosecution of administrative complaints. Prior to February 1993, Respondent was a licensed real estate salesperson in the State of Florida. In February 1993, Respondent filed an application with Petitioner for licensure as a real estate broker. The application provided the applicant with two boxes, one marked "yes" and the other marked "no" to the following question, instructions, and caveat: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty of 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 have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "YES," attach the details and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could result in denial of licensure. If you do not fully understand this question, consult with an attorney of the Division of Real Estate. Respondent answered Question 9 in the negative. Respondent thereafter signed the application, including the following affidavit: The above named and undersigned applicant for licensure as a real estate broker under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information, an records permit, without any evasion or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications, whether and additional oath thereto shall be administered or not. On the evening of September 28, 1986, Respondent and her husband became involved in a loud argument at their home after having consumed too much alcohol. As a result, someone called the Fort Lauderdale Police Department. Respondent was thereafter arrested and charged with disorderly intoxication. On November 20, 1986, Respondent pled nolo contendere to one count of disorderly intoxication in Broward County, Florida. Respondent was fined, but adjudication of guilt was withheld. The court records reflect Respondent's name as being Katherine [sic] Lawand, which is her married name, and Kay Starr, which is the name Respondent uses for business purposes. On the evening of April 25, 1992, a virtual repeat of the incident of September 28, 1986, occurred. Again, as the result of a loud, drunken argument between Respondent and her husband, the Fort Lauderdale Police Department was called. As a result of her behavior, Respondent was arrested on the charge of disorderly conduct. On May 21, 1992, Respondent entered a plea of nolo contendere to one count of disorderly conduct in Broward County, Florida. The court records reflect Respondent's name entered on this plea as Kathline [sic] Starr. Respondent testified that she thought Question 9 on the application for a broker's license only pertained to felony crimes. Respondent testified that she does not consider herself to be a criminal and that she did not intend to mislead or deceive the licensing agency. On May 3, 1993, Respondent passed the broker licensure examination. On May 23, 1993, Respondent was issued her initial license as an inactive broker. The license number was BK0459569. Since September 24, 1993, Respondent has been actively licensed as either a broker or a broker/salesperson. At the time of the formal hearing, Respondent was licensed as an individual broker with an office at 120 East Oakland Park Boulevard, Fort Lauderdale, Florida. Following an automobile accident in Broward County, Florida, on December 12, 1994, Respondent was charged with "DUI/ Blood Alch Above 0.20" (Count I); "Driving Under the Influence" (Count II); and "Disobey Stop/Yield Sign" (Count III). On October 3, 1995, Respondent entered a plea of nolo contendere to the charge of driving under the influence of alcohol (Count II). Count I was nolle prossed and Count III was dismissed. As a result of the plea entered on October 3, 1995, Respondent was adjudged guilty of D.U.I. She was fined, placed on probation for six months, and ordered to perform 50 hours of community service. Her driver's license was suspended for six months. As a condition of her probation, she attended a Court Alcohol Substance Abuse Program D.U.I. School. The court records reflect Respondent's name as being Kay Starr Lawand. There was only minor property damage as a result of the accident involving Respondent on December 12, 1994. No person was injured.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be adopted that finds Respondent guilty of the violation alleged in Count I of the Administrative Complaint and orders that all licenses issued to her by Petitioner be revoked without prejudice to her right to reapply for licensure. It is further RECOMMENDED that Count II of the Administrative Complaint be dismissed. DONE AND ENTERED this 30th day of March, 1998, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 30th day of March, 1998
Findings Of Fact Respondent was certified as a corrections officer in 1972 and was so certified at all times here relevant. Respondent was a season ticket holder to the Tampa Bay Buccaneers 1983 football games. He attended the game on September 25, 1983, with four friends. Before arriving at the game the group bought a fifth of whiskey. Respondent contends he had only one drink prior to the incident with the police officers but three police officers opined that Respondent was intoxicated. During the second half of the game, with the Bucs woefully behind and some spectators leaving the stadium, Respondent was yelling disparaging remarks about the Bucs and their performance on that day. Occasionally, Respondent was standing on his seat when he yelled the remarks. Respondent was more noisy than others in the section in which his seat was located and drew the attention of Jennifer Frye, a City of Tampa police officer serving as a uniformed off-duty policewoman paid the owners of the stadium to maintain crowd control. Officer Frye motioned for Respondent to come to the platform where she was standing, some four rows above Respondent's seat. Respondent did so, climbing between the people and seats behind him as he responded to Frye's summons. When Respondent reached Frye's position, she smelled alcohol on his breath and he appeared to her to be intoxicated. Respondent was somewhat annoyed in being called up by the policewoman and wanted to know why she had beckoned him from his seat. He was gesturing with his arms and asking what he had done wrong. Officer Lois Morraro, another off-duty member of the Tampa police force, was also working in uniform at the stadium. She observed Respondent respond to Frye's request and saw Respondent arguing. Morraro approached the two and positioned herself behind Respondent. Respondent told Frye he was a season ticket holder and was entitled to be upset when the Bucs were losing. Frye and Morraro decided to evict Respondent from the stadium and when Frye initially grabbed his hand Respondent pulled away. She then told him he was under arrest and grabbed his left arm and hand with a come-along grip. Morraro grabbed Respondent's right arm, twisted it behind his back, and moved the hand up toward the shoulders. They proceeded to propel the struggling Respondent down the steps to a holding area. When they reached the holding area they were joined by Sergeant Peter Ambraz, the off- duty Tampa police officer in charge of the stadium detail. Ambraz took Respondent's right arm while Morraro handcuffed Respondent. During this time Respondent was trying to keep from being handcuffed and in the process his elbow accidentally hit Morraro in the throat while she was standing behind him putting handcuffs on him. After Respondent had been handcuffed and taken to the police station, he revealed that he was a certified corrections officer. Respondent was subsequently tried for disorderly intoxication and fired from his job with the Hillsborough County Sheriff's Department.
The Issue Whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's November 23, 2004, Notice of Denial.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a 52-year-old man who resides in Miami- Dade County, Florida, with his wife of several months, Ana Hidalgo, her children, and his youngest child from a previous marriage. As a younger man, Petitioner was a licensed real estate broker. In the 1980's, however, he decided not to renew his license because, due to "lack of sales," he "wasn't really being active." At no time during the period of his licensure was he ever accused of any wrongdoing. After his real estate broker's license expired, Petitioner went into the real estate development and contracting business full-time. The business did not do well and, as a result, Petitioner found it difficult to adequately provide for himself, his wife, and children. Too proud to accept the financial assistance family members offered, Petitioner, instead, resorted to criminal activity to help ease his financial problems. Specifically, for a fee, he acted as an "intermediary" and helped "put . . . together" a cocaine supplier in Columbia (South America) with a cocaine distributor in Florida. This occurred approximately 17 years ago, in 1988. Other than his involvement in this drug smuggling scheme, Petitioner has been a law-abiding citizen. Petitioner was subsequently arrested for his role in this illicit operation and charged in federal district court with the felony crime of drug importation. In or about 1989, after entering a guilty plea, he was adjudicated guilty of the crime and sentenced to federal prison. Petitioner cooperated with the government and, consequently, had his sentence reduced. Petitioner served approximately 11 years in prison, until he was released on parole on September 28, 2000. He was a model prisoner. Since his release from prison, Petitioner has been employed as a car salesman by Lehman Auto World. Throughout the period of his employment, he has been a reliable, dedicated, hard-working and trusted employee, who has developed a reputation for honesty and fair dealing. As part of his job duties, Petitioner sometimes handles (in a fiduciary capacity) large sums of money. He has always discharged this responsibility in an honest and trustworthy manner. Petitioner is still on parole and under the supervision of a United States probation officer. Unless the sentencing court grants early termination,1 Petitioner's parole will terminate on September 28, 2005. In the almost five years he has been on parole, Petitioner has conducted himself in an exemplary manner. Petitioner's prison experience has transformed him into a more mature, responsible, and insightful person, who is repentant and remorseful about his crime. He understands all too well what his ill-advised decision, 17 years ago, to engage in criminal activity has cost him and his family, particularly his children, who did not have their father around for those 11 years that Petitioner was incarcerated. Petitioner is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his family. He has "learned [his] lesson." He is now a firm believer in old adage "crime does not pay." Given the price he has paid for his one criminal indiscretion, he has no intention of ever again letting his good judgment be overwhelmed by the lure of making easy money from criminal activity. He recognizes that to succumb to such temptation would be contrary not just to society's best interests but his as well, and that, if he ever encounters financial problems, he would be far better served "rely[ing] on [the help of] friends [and] family" than resorting to crime, as he did 17 years ago. In short, Petitioner has been rehabilitated, and it appears that the interest of the public and investors will not likely be endangered if he is granted the license he seeks. He now seems to be firmly rooted on the right side of the law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order granting Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 24th day of June, 2005, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 24th day of June, 2005.
Findings Of Fact On or about July 29, 1987, Petitioner filed with Respondent an Application for Licensure as a Real Estate Salesman. The application revealed that Petitioner had been charged with attempted sexual battery, as to which adjudication had been withheld, and Petitioner had received five years' probation. The application also disclosed that he had served 17 days in Orange County Jail for possession of marijuana. Pursuant to order dated June 3, 1981, in Orange County Circuit Court Case No. CR 80206, Petitioner, having entered a plea of no contest to attempted sexual battery on his 15 year old stepdaughter, was placed on five years' probation for this second degree felony as to which adjudication of guilt was withheld. Pursuant to judgment entered on February 27, 1984, in Orange County Circuit Court Case No. 80-206, Petitioner, having been found to have violated his probation, was adjudicated guilty of the above-referenced count of attempted sexual battery in violation of Sections 777.04 and 794.011(4)(e), Florida Statutes. Pursuant to order of disposition in Orange County Court Case No. M083- 4486, Petitioner, having entered a plea of no contest to possession of cannabis, was fined $100 plus court costs for this misdemeanor as to which adjudication of guilt was withheld. Petitioner testified further that, in connection with this incident, he entered a plea of guilty to attempt to evade arrest. Petitioner testified that he was generally of good character and a solid citizen apart from the criminal record disclosed on the application and court records produced at the hearing. However, he offered no corroborative evidence in this regard, nor specific examples of his behavior from which good character could be inferred.
Findings Of Fact Petitioner was arrested in 1969 for issuing a worthless check. He has also been arrested for armed robbery, for conspiracy to commit grand larceny, and for interstate transportation of a stolen boat. His only conviction came after trial on the interstate transportation of stolen goods charges. As a result of that conviction, he was sentenced to prison. In 1973, after serving two and one-half years, he was released and placed on probation. A NEW LEAF The month after he left prison, he began working for the Atlantic Sprinkler Company in Norfolk, Virginia. Petitioner has been employed continuously since. He left Norfolk to take a job with the Virginia Sprinkler Company in Richmond. In 1975, Mr. Bettis moved to Miami. He worked for Firepak as a salaried employee for three years, then began installing fire sprinkler systems as a subcontractor for Firepak and at least one other company, the business in which he was engaged at the time of hearing. In 1976, petitioner remarried. He and Sheridan Lee Bettis adopted one daughter and another daughter was born to them. They own their own home and some farmland in Georgia. Since his release from prison, petitioner has not had so much as a parking ticket. Petitioner has done nothing hurtful or wrong to his wife's knowledge since 1974. QUESTION SIX Petitioner's application was not offered as an exhibit by either party. At one point during cross-examination, respondent's counsel read what he represented to be question six and petitioner's answer into the record, without objection or correction by petitioner, but counsel's representations do not constitute evidence. Nevertheless, although somewhat garbled on the point, 1/ the evidence as a whole (T. 15-17) reflects petitioner's failure to disclose all of his arrests on his application. He explained that he "was under the impression that what [was] wanted was something I had been convicted of." (T. 17.) Petitioner has finished two years of college. PROPOSED FINDINGS CONSIDERED Petitioner made a post-hearing submission, and respondent filed a proposed recommended order. To the extent proposed findings of fact have not been adopted, they have been rejected as immaterial or unsupported by the evidence adduced at hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for licensure as a real estate salesman. DONE AND ENTERED this 20th day of September, 1982, in Tallahassee, Florida. ROBERT T. BENTON II 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 20th day of September, 1982.
The Issue The ultimate issue for determination at final hearing was whether Petitioner's application for licensure as a real estate salesperson should be approved.
Findings Of Fact In October 1992, Petitioner filed an application with Respondent for licensure as a real estate salesperson, together with the required fee. The application asked several questions, including in pertinent part: Question 9: if Petitioner had been "convicted of a crime, found guilty or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld," and Question 13: if Petitioner had had a license to practice any regulated profession revoked upon grounds of fraudulent or dishonest dealing or violations of law. Petitioner responded in the affirmative to both questions and provided written documentation and statements regarding the questions. Petitioner attached to her October 1992 application for licensure various letters to support her application. The letters included one from her probation officer indicating her compliance with her probation; from the local board of realtors indicating that no complaints had been registered against Petitioner during her membership with them, which was from 1979 to 1982 and 1990 to 1992; and from her present employer who is a licensed real estate agent and has employed Petitioner since 1989. On October 21, 1992, Respondent denied Petitioner's application for licensure as a real estate salesperson. The denial was based upon her response to questions 9 and 13 on the application, specifically her 1991 conviction and sentence and the 1992 revocation of her real estate salesperson license. On May 29, 1991, Petitioner plead nolo contendere to three felony counts of grand theft in the third degree. She was placed on probation for five years with special conditions, and adjudication of guilt was withheld. The special conditions of Petitioner's probation were that she would make restitution in the amount of $19,864.52, that she would perform 500 hours of community service, that she would fully cooperate with the State Attorney's Office in the investigation of the criminal activity in which she was involved, and that the probation may be terminated, upon motion, after 30 months. The theft involved a scheme devised by Petitioner's "boss" to obtain funds, beyond entitlement, from the City of Miami. Petitioner was employed as a bookkeeper by an elderly center from 1986 to 1988, which provided transportation, lunches and recreational activities for senior citizens. The center received funds from the City of Miami to operate by being reimbursed for monies paid to vendors. From 1986 to 1988, the center was performing poorly economically. In order to obtain additional monies, the invoices of vendors who did business with the center were inflated or increased and submitted by the center to the City of Miami for reimbursement. As bookkeeper, Petitioner was instrumental in the scheme. The difference between the actual cost and the inflated cost was retained by Petitioner and her boss and distributed at the end of the year to the center's employees, including Petitioner and her boss. Petitioner and her boss controlled the illegally obtained funds. At the end of the center's budget year, which was June 30th of each year, the center was withholding back payments to the U.S. Internal Revenue Service (IRS), using the funds held to pay salaries. As a result, a debt to IRS was created, and when IRS attempted to collect on the debt in 1988, the scheme was discovered and stopped. Petitioner cooperated fully with the State Attorney's Office. At the time of her conviction, Petitioner was licensed by Respondent as a real estate salesperson. Less than a month after her plea of nolo contendere to the grand theft charge and sentence, in June 1991 Petitioner notified Respondent of her conviction and sentence in accordance with statutory provisions regulating the practice of her profession as a licensed real estate salesperson. No evidence of any other conviction was presented. Subsequently, on or about October 30, 1991, an administrative complaint was filed by Respondent against Petitioner based upon her conviction. Petitioner admitted the allegations contained in the administrative complaint. She saw no need to deny the allegations, since she had reported the incident to Respondent. To Petitioner's shock and surprise, in a Final Order dated February 14, 1992, Petitioner's license as a real estate salesperson was revoked by Respondent. Petitioner had been licensed for 13 years without a complaint being filed against her. On February 13, 1992, Petitioner's probationary terms were modified by the court due to her inability to pay the $19,864.52 restitution. The modification included, among other things, that Petitioner was only required to pay monthly the restitution to individuals, which totaled $1,700, that the restitution to the City of Miami could be paid through community service at $10.00 per hour for each month that Petitioner was unable to pay, and that probation could be terminated early after 30 months if restitution was paid in full. By March 9, 1993, Petitioner had completed 500 hours of community service in accordance with the original court order, and for compliance with the modified court order, she had completed 235 hours of community service and paid $125.00 restitution to individuals. Prior to her conviction and license revocation, in 1989. Petitioner was employed with a real estate broker at Allied Associates of the South, Inc. (Allied Associates), in Miami Springs, Florida, as a sales associate, and continued in that position until sometime in 1991 when, due to economic constraints on Allied Associates, the broker cut her staff, choosing a more experienced salesperson over Petitioner. During her employment as a sales associate, no complaints were received by Allied Associates against Petitioner, and no money which was entrusted to her was reported missing. Allied Associates received many complimentary remarks from clients and real estate brokers alike. Subsequently, in November 1991, the broker re-employed Petitioner as a sales manager at Allied Associates. Petitioner informed the broker of her conviction and the circumstances of her conviction. The broker has allowed Petitioner to manage the financial books of the business with no problems. And Respondent has audited Allied Associates' financial books without citing a problem. Furthermore, Petitioner has handled escrow deposits and cash without any problems. Since October 1992, Petitioner has been working with Allied Associates as a sales manager on a part-time basis due to financial constraints experienced by Allied Associates. She has continued to handle escrow deposits and cash without any problems. Moreover, the broker/owner of Allied Associates has no hesitation in putting Petitioner in a position of trust. Further, Petitioner has assisted in the guidance of Allied Associates' sales associates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order allowing Petitioner to take the real estate salesperson's examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October 1993. ERROL H. POWELL 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 29th day of October 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7368 Petitioner's proposed findings of fact. Petitioner's proposed findings of fact consists of one paragraph with several sentences. 1. Substantially adopted in findings of fact 2, 4, 5, and 7-14; but rejected, regarding the second sentence, as unnecessary to the determination of the issues of this case and rejected, regarding the sixth sentence, as constituting argument, conclusions of law, or recitation of testimony. Respondent's proposed findings of fact. Substantially adopted in finding of fact 1. Substantially adopted in findings of fact 1 and 4. Substantially adopted in finding of fact 4. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 10. Substantially adopted in finding of fact 11. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9. Substantially adopted in finding of fact 9; but rejected, regarding notice and failure of Petitioner to appear at the informal hearing, as unnecessary to the determination of the issues of this case. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. Substantially adopted in finding of fact 5; but rejected, regarding the first sentence, as constituting argument, conclusions of law, or recitation of testimony and rejected, regarding the last sentence which indicates that only Petitioner received and used the monies, as contrary to the evidence present. Substantially adopted in finding of fact 8. Substantially adopted in findings of fact 12-14. Note: Respondent proposed finding of fact is very close to constituting recitation of testimony. Substantially adopted in finding of fact 13. Note: Respondent proposed finding of fact is very close to and constituting recitation of testimony. Addressed in the Preliminary Statement of this Recommended Order. Addressed in the Preliminary Statement of this Recommended Order. COPIES FURNISHED: Marina P. Cintron 151 Fairway Drive #2301 Miami Springs, Florida 33166 Manuel E. Oliver Assistant Attorney General 400 West Robinson Street, Suite 107 South Orlando, Florida 32801 Darlene F. Keller Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether petitioner's application for a real estate salesman's license should be denied on the ground that he fails to meet the requirement that an applicant be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. "
Findings Of Fact In March, 1981, petitioner filed an application for licensure as a real estate salesman. (Joint Exhibit 1.) Question No. 6 of the application and petitioner's answer (underlined below) were as follows: Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal vio- lations), without regard to whether convicted, sentenced, pardoned or paroled? Yes. If yes, state details including the outcome in full: Arrested in Savannah, Georgia 1974 for Sales and Possession of Marijuana--Case Dropped- Beaufort, South Carolina 1974 Simple Posses sion of Marijuana--fined $100.00--1978 following to [sic] close--Sarasota, FL $31.00 fine. (Joint Exhibit 1.) At hearing, petitioner confirms his answer to Question No. 6. In 1974, he was in the U.S. Marine Corps and stationed at Beaufort, South Carolina. He was arrested twice on criminal charges. On August 14, 1974, he was arrested in Savannah, Georgia, on charges of possession and sale of marijuana. The present state of the charges is uncertain. At hearing, petitioner invoked his Fifth Amendment privilege in response to questions concerning the circumstances surrounding that arrest. His second arrest occurred in Beaufort, South Carolina; on November 7, 1974, he pleaded guilty to the criminal charge of simple possession of marijuana and paid a $100 fine. Other than a subsequent arrest in Port Charlotte, Florida, arising out of a marriage dissolution (the charge of withholding means of support was ultimately dropped) , petitioner has not been arrested or convicted of any crime since 1974. (Testimony of R. Kiebler; Joint Exhibits 2, 3.) During the last five years, petitioner has been employed by various glass and window companies in southwest Florida. Since February, 1981, he has worked as a salesman for Bill's Custom Glass and Mirror Company in Naples, Florida. In that capacity, he called on contractors, read prints, submitted bids, and signed contracts. He performed his work well; his employer considers him to be a very honest and reliable individual. (Testimony of Reagan, R. Kiebler; Joint Exhibit 1.) Since moving to Naples in February, 1980, petitioner has earned a reputation for truthfulness, honesty, and fair dealing in business affairs. (Testimony of S. Kiebler.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the application of Ronald Leroy Kiebler for a Florida real estate salesman's license be GRANTED. DONE AND RECOMMENDED this 12th day of November, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1981. COPIES FURNISHED: Michael E. Burns, Esquire 945 Central Avenue Naples, Florida 33940 Jeffrey A. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Carlos B. Stafford Executive Director Board of Real Estate 400 West Robinson Street Orlando, Florida 32789
