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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 00-0440

)

EMILIO DANIEL LISTA, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

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

Malono, the duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32801

For Respondent: Emilio Daniel Lista, pro se

28205 Southwest 125th Avenue

Homestead, Florida 33033

STATEMENT OF THE ISSUE

Whether the Respondent committed the violation alleged in

the Administrative Complaint dated September 17, 1998, and if

so, the penalty that should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated September 17, 1998,

the Department of Business and Professional Regulation

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

estate license by fraud, misrepresentation, or concealment, in

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

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

failed to disclose on his application for licensure that he had

been found guilty in 1985 of disorderly intoxication and

resisting arrest without violence. Mr. Lista timely requested

an administrative hearing, and the Department transmitted the

matter to the Division of Administrative Hearings for assignment

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

hearing was held on April 5, 2000.

At the hearing, the Department presented the testimony of

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

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

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

120, 455, and 475, Florida Statutes, and Chapter 61J2, Florida

Administrative Code, were officially recognized.

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

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

parties timely submitted proposed findings of fact and

conclusions of law, which have been considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

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

following findings of fact are made:

1. The Department is the state agency charged with the

responsibility for investigating and prosecuting complaints

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

Florida Real Estate Commission operates within the Department

and is the entity directly responsible for licensing and

disciplining persons licensed under Chapter 475, Florida

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

Division of Real Estate operates within the Department and

assists the Commission in carrying out its statutory duties.

Section 475.021, Florida Statutes (1997).

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

proceeding, a licensed real estate salesperson, having been

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

is currently on inactive status.

3. Mr. Lista submitted to the Department an Application

for Licensure as a Real Estate Salesperson dated January 14,

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

4. Question number 9 on the application requests that the

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

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 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."

If you answered "Yes," attach the details

including dates 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 cause denial of licensure. If you do

not fully understand this question, consult

with an attorney or the Division of Real

Estate.

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

application for licensure. He signed his name below the

Affidavit of Applicant, which provides as follows:

The above named, and undersigned,

applicant for licensure as a real estate

salesperson 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

and records permit, without any evasions 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 of Administrative

Hearings or its representatives, by him/her

in response to inquiries concerning his/her

qualifications.

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

application to the Department in January 1997.

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

issued a Florida real estate salesperson license. The

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

Lista pleaded guilty to one misdemeanor charge of Disorderly

Intoxication, one misdemeanor charge of Resisting an Officer

Without Violence to His Person, and one misdemeanor charge of

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

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

Lista was represented by an attorney in the criminal

proceedings, who appeared in court and handled the matter for

Mr. Lista.

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

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

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

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

Mr. Lista also recalled receiving copies of the dispositions of

the criminal charges against him.

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

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

pleas and the sentence of probation because the incident had

happened 12 years previously.

9. The evidence presented by the Department is sufficient

to establish with the requisite degree of certainty that Mr.

Lista misrepresented his criminal history by answering question

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

supports a finding that Mr. Lista acted carelessly in answering

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

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

well as the guilty pleas and sentence of probation.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes (1999).

11. In its Administrative Complaint, the Department seeks

to impose penalties against Mr. Lista that include suspension or

revocation of his license and/or the imposition of an

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

clear and convincing evidence that Mr. Lista committed the

violations alleged in the Administrative Complaint. Department

of Banking and Finance, Division of Securities and Investor

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

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

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

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

1989), the court explained:

[C] lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact the firm belief of

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

2d 797, 800 (Fla. 4th DCA 1983).

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

pertinent part:

(1) The commission may deny an

application for licensure, registration, or

permit, or renewal thereof; may place a

licensee, registrant, or permittee on

probation; may suspend a license,

registration, or permit for a period not

exceeding 10 years; may revoke a license,

registration, or permit; may impose an

administrative fine not to exceed $1,000 for

each count or separate offense; and may

issue a reprimand, and any or all of the

foregoing, if it finds that the licensee

registrant, permittee, or applicant:

* * *

(m) Has obtained a license by means of

fraud, misrepresentation, or concealment.

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

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

applicant had the intent to commit the act allegedly

constituting fraud, misrepresentation, or concealment. Walker

v. Florida Department of Business and Professional Regulation ,

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

prove that a misrepresentation of fact was deliberate in order

to prove that the misrepresentation was intentional.

"Misrepresentation may also be shown by carelessness or

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

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

3d DCA 1998).

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

has proven by clear and convincing evidence that Mr. Lista

obtained his real estate salesperson license by

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

Statutes. 1/

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

identifies the penalty guidelines for a violation of Section

475.25(1)(m), Florida Statutes (1997). The recommendation of

the Department falls within the guidelines set forth in the rule

and is reasonable under the circumstances.

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 finding that Emilio Daniel Lista is guilty

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

suspending his real estate salesperson license for a period of

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

$1,000.00.

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

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 2000.

ENDNOTE

1 In its Amended Proposed Recommended Order, the Department

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

recommends that Mr. Lista be found guilty of having violated

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

Administrative Complaint filed with the Division of

Administrative Hearings, dated September 17, 1998, contains only

one count, which asserts that Mr. Lista violated Section

475.25(1)(m), Florida Statutes. Because the Department did not

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

Administrative Code, in its Administrative Complaint, Mr. Lista

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

Sternberg v. Department of Professional Regulation, Board of

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

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

717, 720 (Fla. 1st DCA 1991).

COPIES FURNISHED:

Daniel Villazon, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

4600 West Robinson Street

Post Office Box 1900

Orlando, Florida 32801

Emilio Daniel Lista

28205 Southwest 125th Avenue

Homestead, Florida 33033

Herbert R. Fisher, Chairperson

Florida Real Estate Commission

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

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

will issue the F inal O rder in this case.