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.


View Dockets  
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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION , )

16DIVISION OF REAL ESTATE , )

21)

22Petitioner , )

24)

25vs. ) Case No. 01- 0314PL

31)

32MARK T. WEST , )

36)

37Respondent. )

39___________________________________)

40RECOMMENDED ORDER

42A hearing was held in this case by telephone conference,

52on April 23, 2001, before Arnold H. Pollock, an Administrative

62Law Judge with the Division of Administrative Hearings. The

71Administrative Law Judge appeared from Tallahassee, Respondent

78appeared from Madeira Beach, counsel for the Division appeared

87from Orlando, and Petitioner's witness appeared from Tampa.

95APPEARANCES

96For Petitioner : Juana C. Watkins, Esquire

103Department of Business and

107Professional Regulat ion

110400 West Robinson Street

114Post Office Box 1900

118Orlando, Florida 32802-1900

121For Respondent : Mark T. West, pro se

129222 145th Avenue, East

133Madeira Beach, Florida 33708

137STATEMENT OF THE ISSUE

141The issue for consideration in this hearing is whether

150Respondent's license as a real estate salesperson in Florida

159should be disciplined because of the matters alleged in the

169Administrative complaint filed herein.

173PRELIMINARY MATTERS

175By a two-count Administrative Complaint filed in this

183matter on September 21, 2000, the Director of the Division of

194Real Estate (Division) alleged that Respondent, Mark T. West,

203failed to list all previous criminal actions taken against him

213in his application for licensure by the Division, in violation

223of Rule 61J2-2.027(2), Florida Administrative Code, and

230thereby obtained a real estate salesperson's license by means

239of fraud, misrepresentation, or concealment, in violation of

247Subsections 475.25(1)(e) and (m), Florida Statutes.

253Respondent requested a formal hearing on the allegations, and

262after several continuances, this hearing ensued.

268At the hearing, Petitioner presented the testimony of

276Steven L. Pence, an investigator supervisor with the Division,

285and introduced Petitioner's Composite Exhibit 1. Respondent

292testified in his own behalf but presented no exhibits.

301A Transcript of the proceedings was furnished on May 7,

3112001. Subsequent to the receipt thereof only counsel for

320Petitioner submitted matters in writing. These matters were

328carefully considered in the preparation of this Recommended

336Order.

337FINDINGS OF FACT

3401. At all times pertinent to the issues herein, the

350Division of Real Estate was the state agency responsible for

360the licensing of real estate salespersons and the regulation

369of the real estate sales profession in Florida. Respondent,

378Mark T. West, was licensed by the Division as a real estate

390salesperson on March 3, 1997, upon passage of the salesperson

400examination, and held license number SL-0647923.

406Notwithstanding Respondent's testimony that he has not been

414actively engaged in the practice of real estate, licensure

423records maintained by the Division reflect that from March 11,

4331997 through the present, he has been active as a salesperson

444with two broker corporations, TRI W Group, Inc., from March

45411, 1997 through September 17, 2000, and TRI-W Brokerage Inc.,

464from September 18, 2000 to the date of certification ,

473February 22, 2001.

4762. On December 15, 1995, Respondent submitted an

484application for licensure to the Department of Business and

493Professional Regulation, Division of Real Estate. His

500application reflected he was born in St. Petersburg, Florida,

509on September 20, 1961. Question 9 on the application asks

519whether the applicant has ever been convicted of a crime,

529found guilty, or entered a plea of nolo contendere , even if

540adjudication was withheld. The question indicates it's

547applicability to any violation of the law of any municipality,

557county, state, or nation, including traffic offenses other

565than minor traffic offenses, and requires the applicant to

574provide details, including dates and outcomes, in full, on a

584separate sheet of paper. The time period of applicability is

594not limited.

5963. On his application, Respondent, in answer to question

6059, indicated "Yes" and listed a violation of failure to yield

616to a fire engine. No other offenses were reflected on the

627form, nor was any separate sheet listing other offenses found

637in the records of the Division.

6434. After the application was filed, consistent with its

652usual practice, the Division conducted a criminal records

660background check on Respondent which revealed other offenses

668had been charged against him. On January 17, 1980, Respondent

678was charged with DWI in Pinellas County. His driver's license

688was suspended for 90 days, and he was fined.

6975. On September 11, 1982, Respondent was charged with a

707misdemeanor charge of obstructing a police officer in the

716performance of his duties. Though Respondent claims he did

725nothing wrong and the police officer was reprimanded for

734charging him, the fact remains that Respondent pleaded guilty

743to the charge on December 2, 1982, and adjudication was

753withheld.

7546. On January 13, 1986, Respondent was charged, in two

764separate cases, with obtaining property by worthless check.

772Both checks were for $81.90 and, according to Respondent, were

782given in payment for paint which he purchased to paint

792someone's home. He claims he was not paid for the job and,

804therefore, had no funds with which to satisfy the checks he

815wrote. Respondent pleaded guilty in both cases and was placed

825on probation in each case along with a requirement to make

836restitution and pay costs. He was discharged from probation

845after nine months. Respondent claims that as to all offenses

855to which he pleaded guilty, he did so upon advice of counsel.

8677. Respondent was interviewed regarding his application

874on January 13, 2000, by an investigator with the Division to

885whom he indicated at the time that he did not believe he was

898required to list any offense over ten years in the past. At

910hearing, however, Respondent modified that answer by

917indicating his belief the ten-year limitation related only to

926traffic offenses.

9288. Once the Administrative Complaint was served upon

936Respondent, in his election of rights, he claimed he had

946listed all the prior disciplinary actions on a separate sheet

956of paper which he enclosed with the application when it was

967submitted. He reiterated that claim in a letter to the

977Division on November 15, 2000, and he persists in that claim

988as of the date of this hearing.

9959. Review of the application in question reveals that

1004Respondent had previously submitted application for licensure

1011in September, 1994, and had failed the examination for

1020licensure on November 11, 1994, and on January 1, April 3, and

1032June 12, 1995. A review of Respondent's investigative file

1041failed to disclose the prior application or whether Respondent

1050had listed his other offenses on that application. He claims

1060he did so, however.

106410. Respondent attended real estate school in

1071preparation for taking the licensure exam. He cannot recall,

1080however, whether, at the school, he was taught how to fill out

1092the application and what was required to be on it. However,

1103he admits to having read the application and realizes it had

1114to be accurate and complete. He contends he believed he had

1125complied with the disclosure requirements and signed the

1133affidavit of completeness which appears on the application.

114111. Respondent admits that all his difficulties with the

1150law are not listed on the application form itself. He also

1161admits that there is no time limit listed on the application

1172and that the application form, as he submitted it, does not

1183reflect there is an attachment or continuation in any form.

119312. No explanation was given by the counsel for the

1203Commission for the almost five-year delay between the filing

1212of the application for examination by Respondent and the

1221filing of the Administrative Complaint by the state.

1229CONCLUSIONS OF LAW

123213. The Division of Administrative Hearings has

1239jurisdiction over the parties and the subject matter of this

1249proceeding. Subsection 120.57(1), Florida Statutes.

125414. In Count One of the Administrative Complaint, the

1263Division of Real Estate alleges that by failing to list his

1274entire criminal record on his application for licensure,

1282Respondent obtained the license by fraud, misrepresentation,

1289or concealment, in violation of Subsection 475.25(1)(m),

1296Florida Statutes. In Count Two of the Complaint, the Division

1306alleges that the same failure to disclose constitutes a

1315failure to comply with the requirements of Rule 61J2-2.027(2),

1324Florida Administrative Code, which requires the applicant to

1332make it possible to freely inquire into his honesty,

1341integrity, and good character, and thereby constitutes a

1349violation of Subsection 475.25(1)(e), Florida Statutes, as

1356well.

135715. The burden of proof in this case rests upon

1367Petitioner to prove by clear and convincing evidence that

1376Respondent committed the offenses alleged. Department of

1383Banking and Finance v. Osborne Stern and Company , 670 So. 2d

1394932 (Fla. 1996).

139716. Chapter 475.25(1), Florida Statutes, empowers the

1404Florida Real Estate Commission to discipline a license holder

1413who has:

1415(e) . . . violated any of the provisions

1424of this chapter or any lawful order or rule

1433made or issued under the provisions of this

1441chapter or chapter 455.

1445or

1446(m) . . . has obtained a license by

1455means of fraud, misrepresentation, or

1460concealment.

146117. The evidence of record is indisputable that

1469Respondent did not list all his prior arrests and convictions

1479on his application to take the examination for licensure as a

1490real estate salesperson. The issue for resolution here is

1499whether his failure to list those items constitutes fraud,

1508misrepresentation, or concealment.

151118. Respondent has explained his omissi on in several

1520different ways. In one case he said he did not realize that

1532anything older than ten years had to be listed. He also

1543stated his belief that the ten-year limitation related only to

1553traffic offenses. He also stated that he, in fact, listed all

1564his prior disciplinary actions on a separate piece of paper

1574which he enclosed with his application when it was mailed in.

1585It is conceivable that an applicant might reasonably believe

1594that an old traffic violation, even one so serious as a DWI

1606violation, might not require listing. However, it strains the

1615limits of credibility to accept as reasonable a belief that

1625felony check charges or a charge of obstructing a policeman in

1636the performance of his duties are not required to be listed.

1647Further, Respondent's claim that he submitted a separate

1655listing with his application is not credible. Consequently,

1663it is clear that Respondent misrepresented and concealed his

1672prior disciplinary record and obtained approval to take the

1681examination for licensure through that misrepresentation and

1688concealment. As such, he is in violation of both Subsections

1698475.25(1)(e) and (m), Florida Statutes.

170319. The charging statute cited herein as legal basis for

1713the Commission's proposed discipline lists those actions which

1721may be taken when actionable misconduct is established. These

1730include revocation, suspension of the license, probation under

1738such conditions as the Commission directs, reprimand, and the

1747imposition of an administrative fine.

175220. The Counsel for the Commission aptly points out in

1762her post-hearing submission that a professional license is not

1771a right but a privilege granted by the State, and that the

1783agency has broad discretion in determining the fitness of

1792applicants for licensure. For that reason, the licensing

1800agency must have available to it all pertinent information

1809upon which to base its decision as to the applicant's

1819worthiness for licensure.

182221. The inquiry calling for information which Respondent

1830did not adequately provide is designed to provide the

1839licensing agency with that necessary information. Respondent

1846clearly attempted to conceal information relative to the

1854appropriateness of granting him a license. Rule 61J2-

18622.027(2), Florida Administrative Code, defines the

1868significance of the application process and recognizes that

1876the applicant must make it possible to establish his honesty,

1886trustworthiness, character and reputation for fair dealing so

1894that an informed determination may be made of the likelihood

1904he will deal honestly and fairly with the public with whom he

1916engages. Respondent's failure to be forthright with the

1924necessary information on his application casts grave doubt on

1933his character and integrity and whether he should continue to

1943hold a license as a real estate salesperson.

195122. Guidelines for the imposition of discipline in cases

1960involving violations of Subsection 475.25(1), Florida

1966Statutes, are found in Rule 61J2-24.001, Florida

1973Administrative Code, which lists as the normal discipline for

1982obtaining a license through fraud, misrepresentation, or

1989concealment revocation of the license and imposition of an

1998administrative fine of $1,000. However, Subsection (4) of

2007that rule permits deviation from those guidelines for

2015aggravating or mitigating circumstances.

201923. Counsel for Petitioner s uggests that Respondent's

2027attempt to exculpate himself from responsibility for his

2035actions, by placing the onus of the misconduct on others

2045constitutes aggravation which reflects upon his credibility.

2052Counsel recommends that Respondent's license as a real estate

2061salesperson be revoked.

206424. On the other hand, the evidence of record shows that

2075Respondent has been licensed and acting as a real estate

2085salesperson since March 1997 with no claims of misconduct

2094being filed against him. This four-year period of creditable

2103service in the profession may also serve as a mitigating

2113circumstance which could justify imposition of a penalty less

2122than called for in the guidelines. Under the circumstances of

2132this case, considering the several years of creditable service

2141and the length of time elapsed since the concealed misconduct,

2151an exercise of reasonable clemency is appropriate.

2158RECOMMENDATION

2159Based on the foregoing Findings of Fact and Conclusions

2168of Law, it is recommended that the Florida Real Estate

2178Commission enter a Final Order finding Respondent guilty of a

2188violation of Subsections 475.25(1)(e) and (m), Florida

2195Statutes, placing his license as a real estate sales person on

2206probation for one year under such terms and conditions as the

2217Commission may prescribe, and imposing an administrative fine

2225of $1,000.

2228DONE AND ENTERED this 24th day of May, 2001, in

2238Tallahassee, Leon County, Florida.

2242___________________________________

2243ARNOLD H. POLLOCK

2246Administrative Law Judge

2249Division of Administrative Hearings

2253The DeSoto Building

22561230 Apalachee Parkway

2259Tallahassee, Florida 32399-3060

2262(850) 488- 9675 SUNCOM 278-9675

2267Fax Filing (850) 921-6947

2271www.doah.state.fl.us

2272Filed with the Clerk of the

2278Division of Administrative Hearings

2282this 24th day of May, 2001.

2288COPIES FURNISHED:

2290Juana C. Watkins, Esquire

2294Department of Business and

2298Professional Regulation

2300400 West Robinson Street

2304Post Office Box 1900

2308Orlando, Florida 32802-1900

2311Mark T. West

2314222 145th Avenue, East

2318Madeira Beach, Florida 33708

2322Herbert S. Fecker, Director

2326Division of Real Estate

2330Department of Business and

2334Professional Regulation

2336400 West Robinson Street

2340Post Office Box 1900

2344Orlando, Florida 32802-1900

2347Hardy L. Roberts, III, General Counsel

2353Department of Business and

2357Professional Regulation

23591940 North Monroe Street

2363Tallahassee, Florida 32399-0792

2366NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2372All parties have the right to submit written exceptions within

238215 days from the date of this Recommended Order. Any

2392exceptions to this Recommended Order should be filed with the

2402agency that will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 09/10/2001
Proceedings: Final Order filed.
PDF:
Date: 07/18/2001
Proceedings: Agency Final Order
PDF:
Date: 05/24/2001
Proceedings: Recommended Order
PDF:
Date: 05/24/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 05/24/2001
Proceedings: Recommended Order issued (hearing held April 23, 2001) CASE CLOSED.
PDF:
Date: 05/21/2001
Proceedings: (Petitioner) Proposed Recommended Order (filed via facsimile).
Date: 05/07/2001
Proceedings: Transcript filed.
Date: 04/23/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 04/03/2001
Proceedings: Petitioner`s Notice of Filing Exhibits filed.
PDF:
Date: 04/03/2001
Proceedings: Amended Petitioner`s Witness List (filed via facsimile).
PDF:
Date: 03/30/2001
Proceedings: Petitioner`s Witness List (filed via facsimile).
PDF:
Date: 03/30/2001
Proceedings: Notice of Substitution of Counsel (filed by J. Watkins via facsimile).
PDF:
Date: 03/28/2001
Proceedings: Order Continuing and Rescheduling Formal Hearing issued (telephonic hearing set for April 23, 2001, 8:00 a.m.).
PDF:
Date: 03/12/2001
Proceedings: Motion to Continue and Reschedule Hearing (filed via facsimile).
PDF:
Date: 02/23/2001
Proceedings: Amended Notice of Video Teleconference issued. (hearing scheduled for April 6, 2001; 8:30 a.m.; Tampa and Tallahassee, FL, amended as to date, time and place).
PDF:
Date: 02/16/2001
Proceedings: Joint Motion to Continue and Reschedule Hearing (filed via facsimile).
PDF:
Date: 02/06/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 02/06/2001
Proceedings: Notice of Hearing by Video Teleconference issued (video hearing set for March 29, 2001; 8:00 a.m.; Tampa and Tallahassee, FL).
PDF:
Date: 01/30/2001
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 01/24/2001
Proceedings: Initial Order issued.
PDF:
Date: 01/24/2001
Proceedings: Petitioner`s First Request for Admissions and Interrogatories filed.
PDF:
Date: 01/24/2001
Proceedings: Election of Rights filed.
PDF:
Date: 01/24/2001
Proceedings: Administrative Complaint filed.
PDF:
Date: 01/24/2001
Proceedings: Agency referral filed.

Case Information

Judge:
ARNOLD H. POLLOCK
Date Filed:
01/24/2001
Date Assignment:
04/19/2001
Last Docket Entry:
09/10/2001
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
PL
 

Counsels

Related Florida Statute(s) (2):

Related Florida Rule(s) (2):