The Issue The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and: . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . . Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent. DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 15th day of December, 1998. COPIES FURNISHED: Laura McCarthy, Senior Attorney Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Frederick H. Wilsen, Esquire 1999 West Colonial Drive, Suite 211 Orlando, Florida 32804 James Kimbler, Acting Division Director Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On November 22, 1989, T. L. James & Company, Inc. was convicted of conspiracy to suppress and eliminate competition. This is a public entity crime. T. L. James executed a Public Entity Crimes Affidavit on July 24, 1994. On the affidavit T. L. James disclosed the conviction. Pursuant to Section 287.133, Florida Statutes, the Department of management Services (DMS) shall investigate public entity crimes to determine if the convicted company should be placed on the convicted vendors' list. After receiving the affidavit from T. L. James, DMS conducted an investigation and discovered mitigating factors as defined and listed in Section 287.133, Florida Statutes. These factors are: payment of fines and damages totalling $600,000, cooperation with the officials criminally investigating and prosecuting the case, cooperation with DMS' investigation, instituting safeguards in the bid estimation process to prevent further irregularities, and providing full and accurate notice. All other facts stipulated to by the parties pursuant to the Joint Stipulation previously filed in this case are hereby adopted and incorporated by reference.
The Issue The issues are whether Respondent violated Sections 943.13(7), 943.1395(6), and 943.1395(7), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner certified Respondent as a correctional officer on February 14, 1986. Since that time, Respondent has held Correctional Certificate Number 81761. On or about May 8, 1994, Respondent was in the front yard of his residence. Police officers pulled into Respondent's driveway and requested that Respondent approach the patrol car. Respondent walked away from the police car. As he walked away, Respondent dropped an item from his pocket. The item that Respondent dropped was a bag containing white powder. The white powder was cocaine. Respondent was aware of the presence of the bag on his person. Respondent's possession of the bag containing cocaine was unlawful. One of the police officers advised Respondent that he was under arrest. The police officer instructed Respondent to put his hands behind him. Respondent refused to put his hands behind him. The police officers physically restrained Respondent. Respondent subsequently entered a plea of nolo contendere to the offenses of attempted possession of cocaine and resisting officer without violence. On July 17, 1995, Respondent was adjudicated guilty of these two offenses by the county court judge, in and for Putnam County, Florida, in Case Number 95-2767MM06. The court suspended any fine or cost which might be imposed for the conviction of resisting officer without violence. The court ordered Respondent to pay a fine of $241.50, prosecution costs of $50, and an investigation cost of $50 for the conviction of attempted possession of cocaine.
Recommendation Based upon the findings of fact and conclusions of law, it RECOMMENDED: That Petitioner enter a Final Order revoking Respondent's certification as a correctional officer. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Amy J. Bardill, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Johnnie Holcy, Jr. Route 6, Box 300 Palatka, Florida 32177 A. Leon Lowry, II, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
Findings Of Fact On or about October 1, 1990, in Case No. 90-233 CF, pending in the Circuit Court, Fifth Judicial Circuit, in and for Sumter County, Florida, the Petitioner pled nolo contendere to: one count of aggravated battery with a deadly weapon, a second degree felony under Section 784.045(1)(a)2., Florida Statutes; one count of battery on a law enforcement officer, a second degree felony under Section 784.07, Florida Statutes; and one count of resisting arrest with violence, a third degree felony under Section 843.01, Florida Statutes. On the same day, the Petitioner also was adjudicated guilty on all three charges. Sentence was withheld, and the Petitioner was placed in an adult community control program for two years subject to certain conditions. The Petitioner's nolo plea was entered notwithstanding a June 26, 1990, "No Information" filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. On July 28, 1991, the Petitioner was arrested for alleged spouse battery. As a result, the Petitioner was arrested and charged with violation of his community control conditions. On September 19, 1991, a "No Information" was filed in the battery case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Nonetheless, an Order of Modification of Community Control was entered on October 28, 1991, adding a condition that the Petitioner attend and successfully complete marriage/family counseling. On or about April 19, 1992, the Petitioner again was arrested for alleged spouse battery. On July 21, 1992, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. Notwithstanding the April 19, 1992, arrest, there was no evidence that the Petitioner's community control program was further modified, and the Petitioner successfully completed the two-year program, as previously modified on October 28, 1991. On April 29, 1993, the Petitioner's civil rights, other than the right to possess and carry a firearm, were restored by Executive Order of the Office of Executive Clemency of the State of Florida. On or about October 4, 1993, the Petitioner again was arrested for alleged battery. (The record is not clear as to the identity of the alleged victim.) On November 29, 1993, a "No Information" was filed in the case stating that the State Attorney's Office had taken testimony under oath at a State Attorney's investigation and that the facts and circumstances revealed did not warrant prosecution at the time. There was no evidence of any other criminal arrests or convictions after October 4, 1993. The undisputed testimony of the Petitioner and his character witnesses was that there have been none. The Petitioner and his character witnesses also testified persuasively and without contradiction that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and integrity. The Petitioner now understands the importance of avoiding the circumstances that can lead to violations of the criminal law, he appears to have learned how to avoid them, and he appears to be determined to avoid them. Meanwhile, he also has proven himself to be a responsible and caring single father for his children and has made valuable contributions to his community as an adult volunteer, especially in community children's programs. It is found that, with the passage of time, the Petitioner has rehabilitated himself and that he is now a person of high character and approved integrity so as to qualify for licensure as a limited surety agent (bail bondsman).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance and Treasurer enter a final order granting the Petitioner's application for licensure as a limited surety agent (bail bondsman). DONE and ENTERED this 4th day of June, 1996, in Tallahassee, Florida. J. LAWRENCE JOHNSTON, 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 4th day of June, 1996. COPIES FURNISHED: Alvie Edwards, pro se 1544 Bay Street Southeast St. Petersburg, Florida 33701 Dickson E. Kesler, Esquire Department of Insurance and Treasurer 612 Larson Building Tallahassee, Florida 32399-0333 Bill Nelson State Treasurer and Insurance Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Dan Sumner Acting General Counsel Department of Insurance and Treasurer The Capitol, PL-11 Tallahassee, Florida 32399-0300
Findings Of Fact On April 19, 1985, an Order Withholding Adjudication Of Guilt and Placing Defendant on Probation was entered in the Circuit Court for Palm Beach County in Case Number 84-5138CFA02, State of Florida vs. Zedekiah Clayton (hereinafter referred to as the "Felony Order".) The Petitioner was the defendant in that criminal case. According to the Felony Order, Petitioner entered a plea of guilty to aggravated battery without a firearm, a third degree felony. Adjudication of guilt was withheld and Petitioner was placed on three years probation and ordered to pay restitution and court costs. Petitioner contends that he did not plead guilty as reflected in the Felony Order, but, instead, entered a plea of nolo contendere. His contention is supported by the Commitment Form which accompanied the Felony Order. This Commitment Form includes the handwritten notations of the deputy clerk who was apparently present at the time the plea was entered. According to this Form, the Petitioner entered a plea of nolo contendere. While the Commitment Form and Felony Order are in conflict, Petitioner's testimony is credited and it is found that he entered a plea of nolo contendere rather than guilty. On May 22, 1986, Petitioner entered a plea of guilty to a misdemeanor battery count in Palm Beach County Circuit Court Case Number 86-4501CFA02, State of Florida vs. Zedekiah Clayton (the "1986 case"). The initial charge in this case was false imprisonment as reflected on the arrest record dated May 4, 1986. However, the charge was reduced to a misdemeanor battery count. Petitioner was adjudicated guilty and ordered to pay a fine of $125.00. The court specifically directed that Petitioner's probation from the earlier Felony Order should not be violated as a result of this charge. On December 19, 1989, Petitioner filed an application with Respondent for a Class "D" security guard license and a Class "G" statewide gun permit. Section 13 of the application requires the applicant to list any and all arrests and informs the applicant that falsification of the answer "... may be grounds for denial of your license." In response to this question, Petitioner listed the arrest which led to the entry of the Felony Order. However, Petitioner did not list his arrest in the 1986 Case under this section of the application. Petitioner contends that he did not know that he was ever formally placed under arrest in the 1986 Case because he voluntarily accompanied the police officer to the station. He also stated that his attorney advised him that he did not have to disclose the incident because it was a misdemeanor. However, the application form refers to all arrests, not just felony arrests. Petitioner clearly understood that he had to appear in court and he also paid the $125.00 fine assessed against him in that case. There is no acceptable excuse for Petitioner's failure to disclose the 1986 case on his application form.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent enter a Final Order denying Petitioner's application for a Class "D" security guard license and a Class "G" gun permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 15th day of June, 1990. J. STEPHEN MENTON 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 15th day of June, 1990. APPENDIX Case Number 90-1409S Both parties have submitted Proposed Recommended Orders. To the extent tht the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1-5. Incorporated in the preliminary statement. Subordinate to Findings of Fact 4 and 5. Rejected as constituting legal argument. The subject matter of this proposal is covered in part in Findings of Fact 2 and 3. Rejected as not supported by competent, substantial evidence. Rejected as constituting legal argument. Rejected as constituting a conclusion rather than a proposed Finding of Fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 3. Incorporated in the preliminary statement and adopted in part in Finding of Fact 4. Incorporated in the preliminary statement. Adopted in part in Finding of Fact 5. COPIES FURNISHED: James K. Green, Esquire 250 Australian Avenue Suite 1300 West Palm Beach, Florida 33401 Henri C. Cawthon, Esquire Department of State Division of Licensing The Capitol (MS #4) Tallahassee, Florida 32399-0250 Honorable Jim Smith Secretary of State Department of State The Capitol Tallahassee, Florida 32399-0250 Ken Rouse General Counsel Department of State The Capitol Tallahassee, Florida 32399-0250
Recommendation It is, accordingly, RECOMMENDED: That petitioner dismiss the administrative complaint with leave to file an amended administrative complaint alleging post-licensure misconduct only, within twenty days of the order of dismissal. DONE and ENTERED this 13th day of March, 1984, 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 13th day of March, 1984. COPIES FURNISHED: Dean Bunch, Esquire P. O. Drawer 1170 Tallahassee, Florida 32302 Dennis S. Valente, Esquire Department of Law Enforcement P. O. Box 1489 Tallahassee, Florida 32302 Robert Dempsey, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
