00-000440 Department Of Business And Professional Regulation, Florida Real Estate Commission vs. Emilio Daniel Lista
 Status: Closed
Recommended Order on Friday, July 14, 2000.


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Summary: Respondent misrepresented his criminal history on his application for licensure, and the license should be suspended for one year and a $1,000 fine imposed.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, )

16DIVISION OF REAL ESTATE, )

21)

22Petitioner, )

24)

25vs. ) Case No. 00-0440

30)

31EMILIO DANIEL LISTA, )

35)

36Respondent. )

38__________________________________)

39RECOMMENDED ORDER

41Pursuant to notice, a formal hearing was held in this case

52on April 5, 2000, in Miami, Florida, before Patricia Hart

62Malono, the duly-designated Administrative Law Judge of the

70Division of Administrative Hearings.

74APPEARANCES

75For Petitioner: Daniel Villazon, Esquire

80Department of Business and

84Professional Regulation

86Division of Real Estate

90400 West Robinson Street

94Post Office Box 1900

98Orlando, Florida 32801

101For Respondent: Emilio Daniel Lista, pro se

10828205 Southwest 125th Avenue

112Homestead, Florida 33033

115STATEMENT OF THE ISSUE

119Whether the Respondent committed the violation alleged in

127the Administrative Complaint dated September 17, 1998, and if

136so, the penalty that should be imposed.

143PRELIMINARY STATEMENT

145In an Administrative Complaint dated September 17, 1998,

153the Department of Business and Professional Regulation

160("Department") charged that Emilio Daniel Lista obtained a real

171estate license by fraud, misrepresentation, or concealment, in

179violation of Section 475.25(1)(m), Florida Statutes (1997). In

187support of its charge, the Department alleged that Mr. Lista

197failed to disclose on his application for licensure that he had

208been found guilty in 1985 of disorderly intoxication and

217resisting arrest without violence. Mr. Lista timely requested

225an administrative hearing, and the Department transmitted the

233matter to the Division of Administrative Hearings for assignment

242of an administrative law judge. Pursuant to notice, the final

252hearing was held on April 5, 2000.

259At the hearing, the Department presented the testimony of

268Keith Chapman, and Petitioner's Exhibits 1 through 3 were

277offered and received into evidence. Mr. Lista testified in his

287own behalf, but offered no exhibits into evidence. Chapters 20,

297120, 455, and 475, Florida Statutes, and Chapter 61J2, Florida

307Administrative Code, were officially recognized.

312A one-volume transcript of the hearing was filed with the

322Division of Administrative Hearings on June 1, 2000, and the

332parties timely submitted proposed findings of fact and

340conclusions of law, which have been considered.

347FINDINGS OF FACT

350Based on the oral and documentary evidence presented at the

360final hearing and on the entire record of this proceeding, the

371following findings of fact are made:

3771. The Department is the state agency charged with the

387responsibility for investigating and prosecuting complaints

393pursuant to Chapters 455 and 475, Florida Statutes (1997). The

403Florida Real Estate Commission operates within the Department

411and is the entity directly responsible for licensing and

420disciplining persons licensed under Chapter 475, Florida

427Statutes (1997). Section 475.02, Florida Statutes (1997). The

435Division of Real Estate operates within the Department and

444assists the Commission in carrying out its statutory duties.

453Section 475.021, Florida Statutes (1997).

4582. Mr. Lista is, and was at all times material to this

470proceeding, a licensed real estate salesperson, having been

478issued Florida license number SL-0647732. Mr. Lista's license

486is currently on inactive status.

4913. Mr. Lista submitted to the Department an Application

500for Licensure as a Real Estate Salesperson dated January 14,

5101997, and received by the Department on January 27, 1997.

5204. Question number 9 on the application requests that the

530applicant answer "Yes" or "No" to the following:

538Have you ever been convicted of a crime,

546found guilty, or entered a plea of guilty or

555nolo contendere (no contest), even if

561adjudication was withheld? This question

566applies to any violation of the laws of any

575municipality, county, state or nation,

580including traffic offenses (but not parking,

586speeding, inspection, or traffic signal

591violations), without regard to whether you

597were placed on probation, had adjudication

603withheld, paroled, or pardoned. If you

609intend to answer "NO" because you believe

616those records have been expunged or sealed

623by court order pursuant to Section 943.058,

630Florida Statutes, or applicable law of

636another state, you are responsible for

642verifying the expungement or sealing prior

648to answering "NO."

651If you answered "Yes," attach the details

658including dates and outcome, including any

664sentence and conditions imposed, in full on

671a separate sheet of paper.

676Your answer to this question will be checked

684against local, state and federal records.

690Failure to answer this question accurately

696could cause denial of licensure. If you do

704not fully understand this question, consult

710with an attorney or the Division of Real

718Estate.

7195. Mr. Lista answered "No" to question number 9 on the

730application for licensure. He signed his name below the

739Affidavit of Applicant, which provides as follows:

746The above named, and undersigned,

751applicant for licensure as a real estate

758salesperson under the provisions of Chapter

764475, Florida Statutes, as amended, upon

770being duly sworn, deposes and says that

777(s)(he) is the person so applying, that

784(s)(he) has carefully read the application,

790answers, and the attached statements, if

796any, and that all such answers and

803statements are true and correct, and are as

811complete as his/her knowledge, information

816and records permit, without any evasions or

823mental reservations whatsoever; that (s)(he)

828knows of no reason why this application

835should be denied; and (s)(he) further

841extends this affidavit to cover all

847amendments to this application or further

853statements to the Division of Administrative

859Hearings or its representatives, by him/her

865in response to inquiries concerning his/her

871qualifications.

872Mr. Lista's signature was notarized, and he submitted the

881application to the Department in January 1997.

8886. The Department approved Mr. Lista's application and

896issued a Florida real estate salesperson license. The

904Department subsequently learned that, on December 10, 1985, Mr.

913Lista pleaded guilty to one misdemeanor charge of Disorderly

922Intoxication, one misdemeanor charge of Resisting an Officer

930Without Violence to His Person, and one misdemeanor charge of

940Assault. Adjudication was withheld by the court, and Mr. Lista

950was sentenced to probation for a period of six months. Mr.

961Lista was represented by an attorney in the criminal

970proceedings, who appeared in court and handled the matter for

980Mr. Lista.

9827. At the time of the final hearing, Mr. Lista recalled

993being arrested, going to the police station, and being released

1003after about 30 to 45 minutes without having to post bond, and he

1016recalled the details of the 1985 incident leading to his arrest.

1027Mr. Lista also recalled receiving copies of the dispositions of

1037the criminal charges against him.

10428. Mr. Lista testified that, at the time he was filling

1053out the application for licensure, he did not recall the guilty

1064pleas and the sentence of probation because the incident had

1074happened 12 years previously.

10789. The evidence presented by the Department is sufficient

1087to establish with the requisite degree of certainty that Mr.

1097Lista misrepresented his criminal history by answering question

1105number 9 in the negative. At the very least, the evidence

1116supports a finding that Mr. Lista acted carelessly in answering

1126question number 9 in the negative; certainly, had he reflected

1136for a few moments, he would have recalled the 1985 incident, as

1148well as the guilty pleas and sentence of probation.

1157CONCLUSIONS OF LAW

116010. The Division of Administrative Hearings has

1167jurisdiction over the subject matter of this proceeding and of

1177the parties thereto pursuant to Sections 120.569 and 120.57(1),

1186Florida Statutes (1999).

118911. In its Administrative Complaint, the Department seeks

1197to impose penalties against Mr. Lista that include suspension or

1207revocation of his license and/or the imposition of an

1216administrative fine. Therefore, it has the burden of proving by

1226clear and convincing evidence that Mr. Lista committed the

1235violations alleged in the Administrative Complaint. Department

1242of Banking and Finance, Division of Securities and Investor

1251Protection v. Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996);

1263and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

127312. In Evans Packing Co. v. Department of Agriculture and

1283Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

12951989), the court explained:

1299[C] lear and convincing evidence requires

1305that the evidence must be found to be

1313credible; the facts to which the witnesses

1320testify must be distinctly remembered; the

1326evidence must be precise and explicit and

1333the witnesses must be lacking in confusion

1340as to the facts in issue. The evidence must

1349be of such weight that it produces in the

1358mind of the trier of fact the firm belief of

1368conviction, without hesitancy, as to the

1374truth of the allegations sought to be

1381established. Slomowitz v. Walker , 429 So.

13872d 797, 800 (Fla. 4th DCA 1983).

139413. Section 475.25, Florida Statutes (1997), provides in

1402pertinent part:

1404(1) The commission may deny an

1410application for licensure, registration, or

1415permit, or renewal thereof; may place a

1422licensee, registrant, or permittee on

1427probation; may suspend a license,

1432registration, or permit for a period not

1439exceeding 10 years; may revoke a license,

1446registration, or permit; may impose an

1452administrative fine not to exceed $1,000 for

1460each count or separate offense; and may

1467issue a reprimand, and any or all of the

1476foregoing, if it finds that the licensee

1483registrant, permittee, or applicant:

1487* * *

1490(m) Has obtained a license by means of

1498fraud, misrepresentation, or concealment.

150214. In order to prove a violation of Section 475.25(1)(m),

1512Florida Statutes (1997), the Department must prove that the

1521applicant had the intent to commit the act allegedly

1530constituting fraud, misrepresentation, or concealment. Walker

1536v. Florida Department of Business and Professional Regulation ,

1544705 So. 2d 652, 654 (Fla. 5th DCA 1998). It is not necessary to

1558prove that a misrepresentation of fact was deliberate in order

1568to prove that the misrepresentation was intentional.

"1575Misrepresentation may also be shown by carelessness or

1583recklessness as to the truth of the matter asserted." Hernandez

1593v. AMISUB (American Hospital), Inc. , 714 So. 2d 539, 541 (Fla.

16043d DCA 1998).

160715. Based on the findings of fact herein, the Department

1617has proven by clear and convincing evidence that Mr. Lista

1627obtained his real estate salesperson license by

1634misrepresentation, in violation of Section 475.25(1)(m), Florida

1641Statutes. 1/

164316. Rule 61J2-24.001(3)(n), Florida Administrative Code,

1649identifies the penalty guidelines for a violation of Section

1658475.25(1)(m), Florida Statutes (1997). The recommendation of

1665the Department falls within the guidelines set forth in the rule

1676and is reasonable under the circumstances.

1682RECOMMENDATION

1683Based on the foregoing Findings of Fact and Conclusions of

1693Law, it is RECOMMENDED that the Florida Real Estate Commission

1703enter a final order finding that Emilio Daniel Lista is guilty

1714of violating Section 475.25(1)(m), Florida Statutes (1997);

1721suspending his real estate salesperson license for a period of

1731one year; and imposing an administrative fine in the amount of

1742$1,000.00.

1744DONE AND ENTERED this 14th day of July, 2000, in

1754Tallahassee, Leon County, Florida.

1758___________________________________

1759PATRICIA HART MALONO

1762Administrative Law Judge

1765Division of Administrative Hearings

1769The DeSoto Building

17721230 Apalachee Parkway

1775Tallahassee, Florida 32399-3060

1778(850) 488-9675 SUNCOM 278-9675

1782Fax Filing (850) 921-6847

1786www.doah.state.fl.us

1787Filed with the Clerk of the

1793Division of Administrative Hearings

1797this 14th day of July, 2000.

1803ENDNOTE

18041 In its Amended Proposed Recommended Order, the Department

1813alludes to a "Count II" in the Administrative Complaint and

1823recommends that Mr. Lista be found guilty of having violated

1833Rule 61J2-2.027(2), Florida Administrative Code. The

1839Administrative Complaint filed with the Division of

1846Administrative Hearings, dated September 17, 1998, contains only

1854one count, which asserts that Mr. Lista violated Section

1863475.25(1)(m), Florida Statutes. Because the Department did not

1871include a violation of Rule 61J2-2.027(2), Florida

1878Administrative Code, in its Administrative Complaint, Mr. Lista

1886cannot be found guilty of a violation of that rule. See

1897Sternberg v. Department of Professional Regulation, Board of

1905Medical Examiners , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985);

1916cf . Maddox v. Department of Professional Regulation , 592 So. 2d

1927717, 720 (Fla. 1st DCA 1991).

1933COPIES FURNISHED:

1935Daniel Villazon, Esquire

1938Department of Business and

1942Professional Regulation

1944Division of Real Estate

19484600 West Robinson Street

1952Post Office Box 1900

1956Orlando, Florida 32801

1959Emilio Daniel Lista

196228205 Southwest 125th Avenue

1966Homestead, Florida 33033

1969Herbert R. Fisher, Chairperson

1973Florida Real Estate Commission

1977400 West Robinson Street

1981Post Office Box 1900

1985Orlando, Florida 32802-1900

1988Barbara D. Auger, General Counsel

1993Department of Business and

1997Professional Regulation

1999Northwood Centre

20011940 North Monroe Street

2005Tallahassee, Florida 32399-0792

2008NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2014All parties have the right to submit written exceptions within

202415 days from the date of this R ecommended O rder. Any exceptions

2037to this R ecommended O rder should be filed with the agency that

2050will issue the F inal O rder in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/18/2000
Proceedings: Agency Final Order
PDF:
Date: 08/29/2000
Proceedings: Notice of Substitution of Counsel (filed with the Florida Real Estate Commission).
PDF:
Date: 07/14/2000
Proceedings: Recommended Order
PDF:
Date: 07/14/2000
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 07/14/2000
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held April 5, 2000.
PDF:
Date: 06/13/2000
Proceedings: Amended Proposed Recommended Order (as to case number only) (Petitioner filed via facsimile) filed.
Date: 06/12/2000
Proceedings: Proposed Recommended Order (Petitioner filed via facsimile) filed.
Date: 06/01/2000
Proceedings: Transcript Volume 1 filed.
PDF:
Date: 04/14/2000
Proceedings: Letter to Judge Malono from E. Lista Re: Requesting to have case dismissed filed.
Date: 04/05/2000
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 03/29/2000
Proceedings: Notice of Substitute Counsel (Daniel Villazon, filed via facsimile) filed.
PDF:
Date: 02/15/2000
Proceedings: Notice of Hearing sent out. (hearing set for April 5, 2000; 9:00 a.m.; Miami, FL)
PDF:
Date: 02/10/2000
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 01/31/2000
Proceedings: Initial Order issued.
PDF:
Date: 01/27/2000
Proceedings: Administrative Complaint filed.
PDF:
Date: 01/27/2000
Proceedings: Election of Rights filed.
PDF:
Date: 01/27/2000
Proceedings: Agency Referral Letter filed.

Case Information

Judge:
PATRICIA M. HART
Date Filed:
01/27/2000
Date Assignment:
04/16/2000
Last Docket Entry:
08/29/2000
Location:
Miami, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

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