01-000314PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Mark T. West Status: Closed Recommended Order on Thursday, May 24, 2001.

Summary: Real estate salesperson who concealed prior criminal record when applying for licensure is guilty of fraud, concealment, and misrepresentation, but age of convictions and years of creditable service mitigate against revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF REAL ESTATE , )

)

Petitioner , )

)

vs. ) Case No. 01- 0314PL

)

MARK T. WEST , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case by telephone conference,

on April 23, 2001, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings. The

Administrative Law Judge appeared from Tallahassee, Respondent

appeared from Madeira Beach, counsel for the Division appeared

from Orlando, and Petitioner's witness appeared from Tampa.

APPEARANCES

For Petitioner : Juana C. Watkins, Esquire

Department of Business and

Professional Regulat ion

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent : Mark T. West, pro se

222 145th Avenue, East

Madeira Beach, Florida 33708

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether

Respondent's license as a real estate salesperson in Florida

should be disciplined because of the matters alleged in the

Administrative complaint filed herein.

PRELIMINARY MATTERS

By a two-count Administrative Complaint filed in this

matter on September 21, 2000, the Director of the Division of

Real Estate (Division) alleged that Respondent, Mark T. West,

failed to list all previous criminal actions taken against him

in his application for licensure by the Division, in violation

of Rule 61J2-2.027(2), Florida Administrative Code, and

thereby obtained a real estate salesperson's license by means

of fraud, misrepresentation, or concealment, in violation of

Subsections 475.25(1)(e) and (m), Florida Statutes.

Respondent requested a formal hearing on the allegations, and

after several continuances, this hearing ensued.

At the hearing, Petitioner presented the testimony of

Steven L. Pence, an investigator supervisor with the Division,

and introduced Petitioner's Composite Exhibit 1. Respondent

testified in his own behalf but presented no exhibits.

A Transcript of the proceedings was furnished on May 7,

2001. Subsequent to the receipt thereof only counsel for

Petitioner submitted matters in writing. These matters were

carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Division of Real Estate was the state agency responsible for

the licensing of real estate salespersons and the regulation

of the real estate sales profession in Florida. Respondent,

Mark T. West, was licensed by the Division as a real estate

salesperson on March 3, 1997, upon passage of the salesperson

examination, and held license number SL-0647923.

Notwithstanding Respondent's testimony that he has not been

actively engaged in the practice of real estate, licensure

records maintained by the Division reflect that from March 11,

1997 through the present, he has been active as a salesperson

with two broker corporations, TRI W Group, Inc., from March

11, 1997 through September 17, 2000, and TRI-W Brokerage Inc.,

from September 18, 2000 to the date of certification ,

February 22, 2001.

2. On December 15, 1995, Respondent submitted an

application for licensure to the Department of Business and

Professional Regulation, Division of Real Estate. His

application reflected he was born in St. Petersburg, Florida,

on September 20, 1961. Question 9 on the application asks

whether the applicant has ever been convicted of a crime,

found guilty, or entered a plea of nolo contendere , even if

adjudication was withheld. The question indicates it's

applicability to any violation of the law of any municipality,

county, state, or nation, including traffic offenses other

than minor traffic offenses, and requires the applicant to

provide details, including dates and outcomes, in full, on a

separate sheet of paper. The time period of applicability is

not limited.

3. On his application, Respondent, in answer to question

9, indicated "Yes" and listed a violation of failure to yield

to a fire engine. No other offenses were reflected on the

form, nor was any separate sheet listing other offenses found

in the records of the Division.

4. After the application was filed, consistent with its

usual practice, the Division conducted a criminal records

background check on Respondent which revealed other offenses

had been charged against him. On January 17, 1980, Respondent

was charged with DWI in Pinellas County. His driver's license

was suspended for 90 days, and he was fined.

5. On September 11, 1982, Respondent was charged with a

misdemeanor charge of obstructing a police officer in the

performance of his duties. Though Respondent claims he did

nothing wrong and the police officer was reprimanded for

charging him, the fact remains that Respondent pleaded guilty

to the charge on December 2, 1982, and adjudication was

withheld.

6. On January 13, 1986, Respondent was charged, in two

separate cases, with obtaining property by worthless check.

Both checks were for $81.90 and, according to Respondent, were

given in payment for paint which he purchased to paint

someone's home. He claims he was not paid for the job and,

therefore, had no funds with which to satisfy the checks he

wrote. Respondent pleaded guilty in both cases and was placed

on probation in each case along with a requirement to make

restitution and pay costs. He was discharged from probation

after nine months. Respondent claims that as to all offenses

to which he pleaded guilty, he did so upon advice of counsel.

7. Respondent was interviewed regarding his application

on January 13, 2000, by an investigator with the Division to

whom he indicated at the time that he did not believe he was

required to list any offense over ten years in the past. At

hearing, however, Respondent modified that answer by

indicating his belief the ten-year limitation related only to

traffic offenses.

8. Once the Administrative Complaint was served upon

Respondent, in his election of rights, he claimed he had

listed all the prior disciplinary actions on a separate sheet

of paper which he enclosed with the application when it was

submitted. He reiterated that claim in a letter to the

Division on November 15, 2000, and he persists in that claim

as of the date of this hearing.

9. Review of the application in question reveals that

Respondent had previously submitted application for licensure

in September, 1994, and had failed the examination for

licensure on November 11, 1994, and on January 1, April 3, and

June 12, 1995. A review of Respondent's investigative file

failed to disclose the prior application or whether Respondent

had listed his other offenses on that application. He claims

he did so, however.

10. Respondent attended real estate school in

preparation for taking the licensure exam. He cannot recall,

however, whether, at the school, he was taught how to fill out

the application and what was required to be on it. However,

he admits to having read the application and realizes it had

to be accurate and complete. He contends he believed he had

complied with the disclosure requirements and signed the

affidavit of completeness which appears on the application.

11. Respondent admits that all his difficulties with the

law are not listed on the application form itself. He also

admits that there is no time limit listed on the application

and that the application form, as he submitted it, does not

reflect there is an attachment or continuation in any form.

12. No explanation was given by the counsel for the

Commission for the almost five-year delay between the filing

of the application for examination by Respondent and the

filing of the Administrative Complaint by the state.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Subsection 120.57(1), Florida Statutes.

14. In Count One of the Administrative Complaint, the

Division of Real Estate alleges that by failing to list his

entire criminal record on his application for licensure,

Respondent obtained the license by fraud, misrepresentation,

or concealment, in violation of Subsection 475.25(1)(m),

Florida Statutes. In Count Two of the Complaint, the Division

alleges that the same failure to disclose constitutes a

failure to comply with the requirements of Rule 61J2-2.027(2),

Florida Administrative Code, which requires the applicant to

make it possible to freely inquire into his honesty,

integrity, and good character, and thereby constitutes a

violation of Subsection 475.25(1)(e), Florida Statutes, as

well.

15. The burden of proof in this case rests upon

Petitioner to prove by clear and convincing evidence that

Respondent committed the offenses alleged. Department of

Banking and Finance v. Osborne Stern and Company , 670 So. 2d

932 (Fla. 1996).

16. Chapter 475.25(1), Florida Statutes, empowers the

Florida Real Estate Commission to discipline a license holder

who has:

(e) . . . violated any of the provisions

of this chapter or any lawful order or rule

made or issued under the provisions of this

chapter or chapter 455.

or

(m) . . . has obtained a license by

means of fraud, misrepresentation, or

concealment.

17. The evidence of record is indisputable that

Respondent did not list all his prior arrests and convictions

on his application to take the examination for licensure as a

real estate salesperson. The issue for resolution here is

whether his failure to list those items constitutes fraud,

misrepresentation, or concealment.

18. Respondent has explained his omissi on in several

different ways. In one case he said he did not realize that

anything older than ten years had to be listed. He also

stated his belief that the ten-year limitation related only to

traffic offenses. He also stated that he, in fact, listed all

his prior disciplinary actions on a separate piece of paper

which he enclosed with his application when it was mailed in.

It is conceivable that an applicant might reasonably believe

that an old traffic violation, even one so serious as a DWI

violation, might not require listing. However, it strains the

limits of credibility to accept as reasonable a belief that

felony check charges or a charge of obstructing a policeman in

the performance of his duties are not required to be listed.

Further, Respondent's claim that he submitted a separate

listing with his application is not credible. Consequently,

it is clear that Respondent misrepresented and concealed his

prior disciplinary record and obtained approval to take the

examination for licensure through that misrepresentation and

concealment. As such, he is in violation of both Subsections

475.25(1)(e) and (m), Florida Statutes.

19. The charging statute cited herein as legal basis for

the Commission's proposed discipline lists those actions which

may be taken when actionable misconduct is established. These

include revocation, suspension of the license, probation under

such conditions as the Commission directs, reprimand, and the

imposition of an administrative fine.

20. The Counsel for the Commission aptly points out in

her post-hearing submission that a professional license is not

a right but a privilege granted by the State, and that the

agency has broad discretion in determining the fitness of

applicants for licensure. For that reason, the licensing

agency must have available to it all pertinent information

upon which to base its decision as to the applicant's

worthiness for licensure.

21. The inquiry calling for information which Respondent

did not adequately provide is designed to provide the

licensing agency with that necessary information. Respondent

clearly attempted to conceal information relative to the

appropriateness of granting him a license. Rule 61J2-

2.027(2), Florida Administrative Code, defines the

significance of the application process and recognizes that

the applicant must make it possible to establish his honesty,

trustworthiness, character and reputation for fair dealing so

that an informed determination may be made of the likelihood

he will deal honestly and fairly with the public with whom he

engages. Respondent's failure to be forthright with the

necessary information on his application casts grave doubt on

his character and integrity and whether he should continue to

hold a license as a real estate salesperson.

22. Guidelines for the imposition of discipline in cases

involving violations of Subsection 475.25(1), Florida

Statutes, are found in Rule 61J2-24.001, Florida

Administrative Code, which lists as the normal discipline for

obtaining a license through fraud, misrepresentation, or

concealment revocation of the license and imposition of an

administrative fine of $1,000. However, Subsection (4) of

that rule permits deviation from those guidelines for

aggravating or mitigating circumstances.

23. Counsel for Petitioner s uggests that Respondent's

attempt to exculpate himself from responsibility for his

actions, by placing the onus of the misconduct on others

constitutes aggravation which reflects upon his credibility.

Counsel recommends that Respondent's license as a real estate

salesperson be revoked.

24. On the other hand, the evidence of record shows that

Respondent has been licensed and acting as a real estate

salesperson since March 1997 with no claims of misconduct

being filed against him. This four-year period of creditable

service in the profession may also serve as a mitigating

circumstance which could justify imposition of a penalty less

than called for in the guidelines. Under the circumstances of

this case, considering the several years of creditable service

and the length of time elapsed since the concealed misconduct,

an exercise of reasonable clemency is appropriate.

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 Respondent guilty of a

violation of Subsections 475.25(1)(e) and (m), Florida

Statutes, placing his license as a real estate sales person on

probation for one year under such terms and conditions as the

Commission may prescribe, and imposing an administrative fine

of $1,000.

DONE AND ENTERED this 24th day of May, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of May, 2001.

COPIES FURNISHED:

Juana C. Watkins, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Mark T. West

222 145th Avenue, East

Madeira Beach, Florida 33708

Herbert S. Fecker, Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

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 Recommended Order. Any

exceptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.