01-001599PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Mark Francis Threnhauser
 Status: Closed
Recommended Order on Friday, August 10, 2001.


View Dockets  
Summary: Real estate salesperson who omitted certain information about criminal history from licensure application, but did so without intent to deceive, is guilty of violating Rule 61J2-2.027(2), F.A.C., but not Section 475.25(1)(m), Florida Statutes.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION , )

16DIVISION OF REAL ESTATE , )

21)

22Petitioner, )

24)

25vs. ) Case No. 01-1599PL

30)

31MARK FRANCIS THRENHAUSSER, )

35)

36Respondent. )

38_________________________________)

39RECOMMENDED ORDER

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

52accordance with Section 120.57(1), Florida Statutes, on

59July 10, 2001, by video teleconference at sites in Fort

69Lauderdale and Tallahassee, Florida, before Stuart M. Lerner, a

78duly-designated Administrative Law Judge of the Division of

86Administrative Hearings.

88APPEARANCES

89For Petitioner : Donna K. Ryan, Esquire

96Department of Business and

100Professional Regulation

102Post Office Box 1900

106Orlando, Florida 32802-1900

109For Respondent : Steven W. Johnson, Esquire

1161801 East Colonial Drive

120Suite 101

122Orlando, Florida 32803

125STATEMENT OF THE ISSUE

129Whether Respondent committed the violations alleged in the

137Administrative Complaint, and, if so, what disciplinary action

145should be taken against him.

150PRELIMINARY STATEMENT

152On December 14, 2000, Petitioner filed an Administrative

160Complaint against Respondent, a Florida-licensed real estate

167salesperson, alleging that Respondent had failed to make certain

176disclosures regarding his criminal history on the application

184for licensure he had submitted on or about April 27, 1998, and,

196as a consequence, was guilty of : having "obtained [his] license

207by means of fraud, misrepresentation, or concealment in

215violation of Section 475.25(1)(m)," Florida Statutes (Count I);

223and having "failed to comply with the requirements of R[ule]

23361J2-2.027(2), Fla. Admin. Code," in violation of Section

241475.25(1)(e), Florida Statutes (Count II). Through the

248submission of a completed Amended Election of Rights form,

257Respondent denied the allegations of wrongdoing made in the

266Administrative Complaint and requested "a formal hearing

273pursuant to Section 120.57(1), Florida Statutes, before [an

281Administrative Law Judge] to be appointed by the Division of

291Administrative Hearings." On April 27, 2001, the matter was

300referred to the Division of Administrative Hearings (Division)

308for the assignment of a Division Administrative Law Judge to

318conduct the hearing Respondent had requested.

324As noted above, the final hearing was held on July 10,

3352001. Five witnesses testified at the hearing : Catherine

344Rivera, an investigator with Petitioner; Respondent; Christopher

351Cloney, Esquire; Samantha Molloy, Esquire; and Gene Whiddon. In

360addition to the testimony of these five witnesses, 11 exhibits

370(Petitioner's Exhibits 1 through 7, 9, and 10, and Respondent's

380Exhibits 1 and 4) were offered and received into evidence.

390At the close of the evidentiary portion of the hearing, the

401undersigned established a deadline (ten days from the date of

411the filing of the hearing transcript with the Division) for the

422filing of proposed recommended orders.

427A Transcript of final hearing (consisting of one volume)

436was filed with the Division on July 30, 2001. Petitioner and

447Respondent filed their Proposed Recommended Orders on August 8,

4562001, and August 9, 2001, respectively. These post-hearing

464submittals have been carefully considered by the undersigned.

472FINDINGS OF FACT

475Based upon the evidence adduced at the final hearing and

485the record as a whole, the following findings of fact are made:

4971. Respondent is now, and has been since June 8, 1998, a

509Florida-licensed real estate salesperson. He holds license

516number SL-0665186.

5182. Since February of 1999, he has worked at Prudential

528Florida Realty in Fort Lauderdale, Florida.

5343. In the late 1970s and early 1980s, prior to obtaining

545his real estate salesperson license, Respondent was a defendant

554in several criminal proceedings. His legal problems stemmed

562from his use of alcohol.

5674. On or about May 31, 1977, in Broward County Court Case

579No. 77006724MM19A, Respondent was adjudicated guilty of one

587count of possessing drugs without a prescription and fined

596$110.00.

5975. On or about March 29, 1978, in Broward County Court

608Case No. 78000832MM10A, after entering a plea of no contest,

618Respondent was adjudicated guilty of one count of driving with a

629suspended or revoked driver's license and fined $500.00.

6376. On or about October 10, 1980, in Broward County Court

648Case No. 80011944MMA02, Respondent pled guilty to one count of

658resisting arrest without violence. (It is unclear whether or

667not adjudication of guilt was withheld.)

6737. On or about February 2, 1981, in Palm Beach County

684Court Case No. 800011068MMA02, Respondent was sentenced for

692prowling. Adjudication of guilt was withheld.

6988. On or about October 19, 1981, in Broward County Court

709Case No. 81017282MM10A, Respondent was adjudicated guilty of

717resisting arrest/obstructing justice without violence and placed

724on probation for four months and fined $78.50.

7329. In or about 1984, Respondent was found guilty of

742driving under the influence and was ordered, as part of his

753sentence, to attend Alcoholics Anonymous (AA) meetings.

76010. Since that time, Respondent has attended AA meetings

769on a regular basis.

77311. Respondent was successful in his efforts to end his

783reliance upon alcohol. He has been sober since approximately

7921992.

79312. On December 17, 1997, Respondent was arrested in

802Broward County for prostitution/lewdness/assignation in

807violation of a City of Fort Lauderdale municipal ordinance. The

817case was docketed as Broward County Court Case No.

82697033300MO10A. Respondent initially entered a plea of not

834guilty to the charge. On March 18, 1998, Respondent executed an

845Affidavit to Enter Plea, Waiver of Rights and Stipulation

854(Affidavit). In the Affidavit, Respondent " agree[d] to enter a

863plea of NO CONTEST to the [reduced] charge of DISORDERLY CONDUCT

874. . . upon the following terms: receive a withholding of

885adjudication, pay $4.00 to lift any capias, and pay Court Costs

896of $300.00," and he requested the court to accept his "plea in

908abstentia pursuant to rule 3.180(c), and sentence [him] in

917abstentia." Respondent left the executed Affidavit with his

925attorney, Christopher Cloney, Esquire, with the understanding

932that Mr. Cloney would take the necessary measures to present it

943to the court. The executed Affidavit was filed with the court

954the next day, March 19, 1998. That same day, March 19, 1998,

966the court accepted Respondent's plea, withheld adjudication of

974guilt, and fined Respondent $300.00. Neither Respondent nor

982Mr. Cloney was present when the court took such action.

992Mr. Cloney, on or about April 1, 1998, paid the fine on behalf

1005of Respondent. Sometime after April 1, 1998, Mr. Cloney sent

1015Respondent a bill and advised Respondent of the outcome of the

1026case. Respondent had not made any inquiry regarding the status

1036of his Affidavit and the disposition of his case prior to

1047hearing from Mr. Cloney.

105113. On April 1, 1998, Respondent completed an Application

1060for Licensure as a Real Estate Salesperson form (Application).

106914. The Application was subsequently filed with

1076Petitioner.

107715. The Application contained the following signed and

1085notarized "Affidavit of Applicant":

1090The above named, and undersigned, applicant

1096for licensure as a real estate salesperson

1103under the provisions of Chapter 475, Florida

1110Statutes, as amended, upon being duly sworn,

1117deposes and says that (s)(he) is the person

1125so applying, that (s)(he) has carefully read

1132the application, answers and the attached

1138statements, if any, and that all statements

1145are true and correct, and are as complete as

1154his/her knowledge, information and records

1159permit, without any evasions or mental

1165reservations whatsoever; that (s)(he) knows

1170of no reason why this application should be

1178denied; and (s)(he) further extends this

1184affidavit to cover all amendments to this

1191application or further statements to the

1197Division or its representatives, by him/her

1203in response to inquiries concerning his/her

1209qualifications.

121016. Item 9 on the Application form that Respondent used to

1221apply for licensure read as follows:

1227Have you ever been convicted of a crime,

1235found guilty, or entered a plea of guilty or

1244nolo contendre (no contest), even if

1250adjudication was withheld? This question

1255applies to any violation of the laws of any

1264municipality, county, state or nation,

1269including traffic offenses (but not parking,

1275speeding, inspection, or traffic signal

1280violations), without regard to whether you

1286were placed on probation, had adjudication

1292withheld, paroled, or pardoned. If you

1298intend to answer "NO" because you believe

1305those records have been expunged or sealed

1312by court order pursuant to Section 943.058,

1319Florida Statutes, or applicable law of

1325another state, you are responsible for

1331verifying the expungement or sealing prior

1337to answering "NO."

1340If you answered "Yes ," attach the details

1347including dates and outcome, including any

1353sentence and conditions imposed, in full on

1360a separate sheet of paper.

1365Your answer to this question will be checked

1373against local, state and federal records.

1379Failure to answer this question accurately

1385could cause denial of licensure. If you do

1393not fully understand this question, consult

1399with an attorney or the Division of Real

1407Estate.

140817. In response to the question asked in Item 9,

1418Respondent checked the box marked "Yes." Contrary to the

1427instructions set forth in Item 9, however, Respondent did not

"1437attach the details including dates and outcome, including any

1446sentence and conditions imposed, in full on a separate sheet of

1457paper." Instead, Respondent wrote on the Application itself, in

1466the margin next to Item 9, the following: "Had DUI in 1984."

147818. Respondent filled out the Application at the Gold

1487Coast School of Real Estate, where he was taking a course.

149819. He filled out the application hurriedly because he

"1507was trying to get it in for the next [licensure] exam" before

1519the deadline.

152120. At the time he filled out the Application, Respondent

1531knew that there had been other instances in the late 1970s and

1543early 1980s, in addition to the one he had disclosed on the

1555Application, where he had "been convicted of a crime, found

1565guilty, or entered a plea of guilty or nolo contendre (no

1576contest)"; however, he did not remember all of the particulars

1586of these previous encounters with the law.

159321. At the time he filled out the Application, Respondent

1603did not know whether the Affidavit he had signed on March 18,

16151998, had been filed and accepted by the court in Broward County

1627Court Case No. 97033300MO10A.

163122. In a hurry to complete the Application and not wanting

1642to take the time to do the research necessary for him to obtain

1655the "details" asked for in Item 9, Respondent decided to

1665disclose what he considered to be his most serious offense, the

16761984 "DUI," and not bother to mention any other offense. In so

1688doing, Respondent did not intend to mislead or deceive

1697Petitioner about his past. He simply did not think that it was

1709critical that he disclose any more information than he did. He

1720assumed (reasonably so, in light of the third paragraph of Item

17319) that, since he answered Item 9 in the affirmative, Petitioner

1742would "do [its] own records check" and find out the "details" of

1754his criminal record, which he "knew" did not include "any crime

1765of fraud or anything that was dishonest."

177223. As noted above, Petitioner, on June 8, 1998, issued

1782Respondent a real estate salesperson license.

1788CONCLUSIONS OF LAW

179124. The Florida Real Estate Commission (Commission) is

1799statutorily empowered to take disciplinary action against

1806Florida-licensed real estate salespersons based upon any of the

1815grounds enumerated in Section 475.25(1), Florida Statutes. Such

1823disciplinary action may include one or more of the following

1833penalties : license revocation; license suspension (for a period

1842not exceeding ten years); imposition of an administrative fine

1851not to exceed $1,000 for each count or separate offense;

1862issuance of a reprimand; and placement of the licensee on

1872probation. Section 475.25(1), Florida Statutes.

187725. "No revocation [or] suspension . . . of any [real

1888estate salesperson's] license is lawful unless, prior to the

1897entry of a final order, [Petitioner] has served, by personal

1907service or certified mail, an administrative complaint which

1915affords reasonable notice to the licensee of facts or conduct

1925which warrant the intended action and unless the licensee has

1935been given an adequate opportunity to request a proceeding

1944pursuant to ss. 120.569 and 120.57." Section 120.60(5), Florida

1953Statutes.

195426. The licensee must be afforded an evidentiary hearing

1963if, upon receiving such written notice, the licensee disputes

1972the alleged facts set forth in the administrative complaint.

1981Sections 120.569(1) and 120.57, Florida Statutes.

198727. At the hearing, Petitioner bears the burden of proving

1997that the licensee engaged in the conduct, and thereby committed

2007the violations, alleged in the administrative complaint. Proof

2015greater than a mere preponderance of the evidence must be

2025presented. Clear and convincing evidence of the licensee's

2033guilt is required. See Department of Banking and Finance,

2042Division of Securities and Investor Protection v. Osborne Stern

2051and Company , 670 So. 2d 932, 935 (Fla. 1996) ; Ferris v.

2062Turlington , 510 So. 2d 292 (Fla. 1987) ; Pou v. Department of

2073Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and

2085Section 120.57(1)(j), Florida Statutes ("Findings of fact shall

2094be based upon a preponderance of the evidence, except in penal

2105or licensure disciplinary proceedings or except as otherwise

2113provided by statute . . . .").

212128. Clear and convincing evidence "requires more proof

2129than a 'preponderance of the evidence' but less than 'beyond and

2140to the exclusion of a reasonable doubt.'" In re Graziano , 696

2151So. 2d 744, 753 (Fla. 1997). It is an "intermediate standard."

2162Id. For proof to be considered "'clear and convincing' . . .

2174the evidence must be found to be credible; the facts to which

2186the witnesses testify must be distinctly remembered; the

2194testimony must be precise and explicit and the witnesses must be

2205lacking in confusion as to the facts in issue. The evidence

2216must be of such weight that it produces in the mind of the trier

2230of fact a firm belief or conviction, without hesitancy, as to

2241the truth of the allegations sought to be established." In re

2252Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval,

2263from Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

22751983).

227629. In determining whether Petitioner has met its burden

2285of proof, it is necessary to evaluate its evidentiary

2294presentation in light of the specific factual allegations made

2303in the administrative complaint. Due process prohibits an

2311agency from taking disciplinary action against a licensee based

2320upon conduct not specifically alleged in the agency's

2328administrative complaint or other charging instrument. See

2335Hamilton v. Department of Business and Professional Regulation ,

2343764 So. 2d 778 (Fla. 1st DCA 2000) ; Lusskin v. Agency for Health

2356Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA 1999); and

2368Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

23791st DCA 1996).

238230. Furthermore, "the conduct proved must legally fall

2390within the statute or rule claimed [in the administrative

2399complaint] to have been violated." Delk v. Department of

2408Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

24181992). In deciding whether "the statute or rule claimed to have

2429been violated" was in fact violated, as alleged by Petitioner,

2439if there is any reasonable doubt, that doubt must be resolved in

2451favor of the licensee. See Whitaker v. Department of Insurance

2461and Treasurer , 680 So. 2d 528, 531 (Fla. 1st DCA 1996) ; Elmariah

2473v. Department of Professional Regulation, Board of Medicine , 574

2482So. 2d 164, 165 (Fla. 1st DCA 1990); and Lester v. Department of

2495Professional and Occupational Regulations , 348 So. 2d 923, 925

2504(Fla. 1st DCA 1977).

250831. In those cases where the proof is sufficient to

2518establish that the licensee committed the violations alleged in

2527the administrative complaint and therefore disciplinary action

2534is warranted, it is necessary, in determining what disciplinary

2543action should be taken against the licensee, to consult

2552Petitioner's "disciplinary guidelines," which impose

2557restrictions and limitations on the exercise of Petitioner's

2565disciplinary authority. See Parrot Heads, Inc. v. Department of

2574Business and Professional Regulation , 741 So. 2d 1231, 1233

2583(Fla. 5th DCA 1999)("An administrative agency is bound by its

2594own rules . . . creat[ing] guidelines for disciplinary

2603penalties."); cf . State v. Jenkins , 469 So. 2d 733, 734 (Fla.

26161985)("[A ]gency rules and regulations, duly promulgated under

2625the authority of law, have the effect of law."); Buffa v.

2637Singletary , 652 So. 2d 885, 886 (Fla. 1st DCA 1995)("An agency

2649must comply with its own rules.") ; Decarion v. Martinez , 537 So.

26612d 1083, 1084 (Fla. 1st 1989)("Until amended or abrogated, an

2672agency must honor its rules."); and Williams v. Department of

2683Transportation , 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency

2693is required to comply with its disciplinary guidelines in taking

2703disciplinary action against its employees).

270832. Petitioner's "disciplinary guidelines" are found in

2715Rule 61J2-24.001, Florida Administrative Code, which provides,

2722in pertinent part, as follows:

2727(1 ) Pursuant to s.455.2273, Florida

2733Statutes, the Commission sets forth below a

2740range of disciplinary guidelines from which

2746disciplinary penalties will be imposed upon

2752licensees guilty of violating Chapters 455

2758or 475, Florida Statutes. The purpose of

2765the disciplinary guidelines is to give

2771notice to licensees of the range of

2778penalties which normally will be imposed for

2785each count during a formal or an informal

2793hearing. For purposes of this rule, the

2800order of penalties, ranging from lowest to

2807highest, is : reprimand, fine, probation,

2813suspension, and revocation or denial.

2818Pursuant to s. 475.25(1), Florida Statutes,

2824combinations of these penalties are

2829permissible by law. . . .

2835(2 ) As provided in s. 475.25(1), Florida

2843Statutes, the Commission may, in addition to

2850other disciplinary penalties, place a

2855licensee on probation. The placement of the

2862licensee on probation shall be for such a

2870period of time and subject to such

2877conditions as the Commission may specify.

2883Standard probationary conditions may

2887include, but are not limited to, requiring

2894the licensee : to attend pre-licensure

2900courses; to satisfactorily complete a pre-

2906licensure course; to attend post-licensure

2911courses; to satisfactorily complete a post-

2917licensure course; to attend continuing

2922education courses; to submit to and

2928successfully complete the state-administered

2932examination; to be subject to periodic

2938inspections and interviews by a DPR

2944investigator; if a broker, to place the

2951license on a broker-salesperson status; or,

2957if a broker, to file escrow account status

2965reports with the Commission or with a DPR

2973investigator at such intervals as may be

2980prescribed.

2981(3 ) The penalties are as listed unless

2989aggravating or mitigating circumstances

2993apply pursuant to paragraph (4). The verbal

3000identification of offenses is descriptive

3005only; the full language of each statutory

3012provision cited must be consulted in order

3019to determine the conduct included. . . .

3027(f ) VIOLATION: 475.25(1)(e)

3031Violated any rule or order or provision

3038under Chapters 475 and 455, F.S.

3044RECOMMENDED RANGE OF PENALTY : The usual

3051action of the Commission shall be to impose

3059a penalty from an 8 year suspension to

3067revocation and an administrative fine

3072of $1,000 . . . .

3079(n ) VIOLATION: 475.25(1)(m)

3083Obtained a license by fraud,

3088misrepresentation or concealment

3091RECOMMENDED RANGE OF PENALTY : In the case

3099of a licensee who renews the license without

3107having complied with Rule 61J2-3.009 and the

3114act is discovered by the BPR, the usual

3122action of the Commission shall be to impose

3130a penalty of revocation. In the case of a

3139licensee who renews the license without

3145having complied with Rule 61J2-3.009 and the

3152licensee brings the matter to the attention

3159of the BPR, the usual action of the

3167Commission shall be to impose a penalty of a

3176$1,000 administrative fine. In all other

3183cases, the usual action of the Commission

3190shall be to impose a penalty of revocation

3198and an administrative fine of $ 1,000. . . .

3209(4)(a ) When either the Petitioner or

3216Respondent is able to demonstrate

3221aggravating or mitigating circumstances to

3226the Commission in a s. 120.57(2), Florida

3233Statutes, hearing or to a Division of

3240Administrative Hearings hearing officer in a

3246s. 120.57(1), Florida Statutes, hearing by

3252clear and convincing evidence, the

3257Commission or hearing officer shall be

3263entitled to deviate from the above

3269guidelines in imposing or recommending

3274discipline, respectively, upon a licensee.

3279Whenever the Petitioner or Respondent

3284intends to introduce such evidence to the

3291Commission in a s. 120.57(2), Florida

3297Statutes, hearing, advance notice of no less

3304than seven (7) days shall be given to the

3313other party or else the evidence can be

3321properly excluded by the Commission.

3326(b ) Aggravating or mitigating circumstances

3332may include, but are not limited to, the

3340following:

33411. The severity of the offense.

33472. The degree of harm to the consumer or

3356public.

33573. The number of counts in the

3364Administrative Complaint.

33664. The number of times the offenses

3373previously have been committed by the

3379licensee.

33805. The disciplinary history of the

3386licensee.

33876. The status of the licensee at the time

3396the offense was committed.

34007. The degree of financial hardship

3406incurred by a licensee as a result of the

3415imposition of a fine or suspension of the

3423license.

34248. Violation of the provision of Chapter

3431475, Florida Statutes, where in a letter of

3439guidance as provided in s. 455.225(3),

3445Florida Statutes, previously has been issued

3451to the licensee.

345433. The Administrative Complaint issued in the instant

3462case alleges that Respondent violated Subsections (l)(e) and (m)

3471of Section 475.25, Florida Statutes, by obtaining his real

3480estate salesperson license by submitting to Petitioner an

3488application for licensure in which he failed to disclose his

3498complete criminal history.

350134. Subsection (1)(e) of Section 475.25, Florida Statutes,

3509authorizes the Commission to take disciplinary action against a

3518Florida-licensed real estate salesperson who "[h ]as violated any

3527of the provisions of this chapter or any lawful order or rule

3539made or issued under the provisions of this chapter or chapter

3550455."

355135. Among the rules issued under Chapter 475, Florida

3560Statutes, the violation of which subjects a licensee to

3569disciplinary action pursuant to Subsection (1)(e) of Section

3577475.25, Florida Statutes, is Rule 61J2-2.027(2), Florida

3584Administrative Code, which provides as follows:

3590The applicant must make it possible to

3597immediately begin the inquiry as to whether

3604the applicant is honest, truthful,

3609trustworthy, of good character, and bears a

3616good reputation for fair dealings, and will

3623likely make transactions and conduct

3628negotiations with safety to investors and to

3635those with whom the applicant may undertake

3642a relation of trust and confidence. The

3649applicant is required to disclose:

3654(a ) if ever convicted of a crime, or if any

3665judgment or decree has been rendered against

3672the applicant for fraud or dishonest

3678dealings, or

3680(b ) if now a patient of a mental health

3690facility or similar institution for the

3696treatment of mental disabilities, or

3701(c ) if ever called by, or done business

3710under any other name, or alias, than the

3718name signed on the application, with

3724sufficient information to enable the

3729Commission to investigate the circumstances,

3734or

3735(d ) if ever had a broker's or salesperson's

3744license revoked, suspended, or otherwise

3749acted against, or had an application for

3756such licensure denied, by the real estate

3763licensing agency of another state,

3768territory, or country.

377136. Subsection (1)(m) of Section 475.25, Florida Statutes,

3779authorizes the Commission to take disciplinary action against a

3788Florida-licensed real estate salesperson who "[h ]as obtained a

3797license by means of fraud, misrepresentation, or concealment."

3805To establish that a licensee committed such a violation, it must

3816be shown not only that the licensee provided false or misleading

3827information on his licensure application, but also that the

3836licensee knowingly did so with the intent to deceive and that

3847the license was issued based upon the false or misleading

3857information provided by the licensee. 1/ 2/ See Walker v.

3867Department of Business and Professional Regulation , 705 So. 2d

3876652, 654 (Fla. 5th DCA 1998)("[S ]ection 475.25(1)(m), Florida

3886Statutes, . . . contemplates that an intentional act be proved

3897before a violation may be found."); see also Munch v. Department

3909of Professional Regulation, Division of Real Estate , 592 So. 2d

39191136 (Fla. 1st DCA 1992)("It is clear that Section 475.25(1)(b)

3930[Florida Statutes, which, in its first clause, authorizes the

3939Commission to discipline a licensee guilty of fraud,

3947misrepresentation, concealment, false promises, false pretenses,

3953dishonest dealing by trick, scheme or device, culpable

3961negligence, or breach of trust in any business transaction] is

3971penal in nature. As such, it must be construed strictly, in

3982favor of the one against whom the penalty would be

3992imposed. . . . Reading the first clause of Section 475.25(1)(b)

4003(the portion of the statute which appellant was charged with

4013having violated in Count I of the complaint), and applying to

4024the words used their usual and natural meaning, it is apparent

4035that it is contemplated that an intentional act be proved before

4046a violation may be found."); Charter Air Center, Inc. v. Miller ,

4058348 So. 2d 614, 616 (Fla. 2d DCA 1977)("The elements of

4070fraudulent representation are : a false statement pertaining to

4079a material fact, knowledge that it is false, intent to induce

4090another to act on it, and injury by acting on the statement");

4103Gentry v. Department of Professional and Occupational

4110Regulations , 293 So. 2d 95, 97 (Fla. 1st DCA 1974)(statutory

4120provision prohibiting licensed physicians from "[m ]aking

4127misleading, deceptive and untrue representations in the practice

4135of medicine" held not to apply to "representations which are

4145honestly made but happen to be untrue"; "[t]o constitute a

4155violation, . . . the legislature intended that the misleading,

4165deceptive and untrue representations must be made willfully

4173(intentionally)"); and Naekel v. Department of Transportation ,

4181782 F.2d 975, 978 (Fed. Cir. 1986)("[A] charge of falsification

4192of a government document [in this case, an employment

4201application] requires proof not only that an answer is wrong,

4211but also that the wrong answer was given with intent to deceive

4223or mislead the agency. The fact of an incorrect response cannot

4234control the question of intent. Were a bare inaccuracy

4243controlling on the question of intent, the 'intent' element of

4253the charge would be subsumed within the distinct inquiry of

4263whether the employee's answer adheres to the true state of

4273facts. A system of real people, pragmatic in their

4282expectations, would not easily tolerate a rule under which the

4292slightest deviation from truth, would sever one's tenuous link

4301to employment. Indeed, an SF-171 does not require absolute

4310accuracy. Instead, an employee must certify that the answers

4319are 'true, complete and correct to the best of my knowledge and

4331belief, and are made in good faith.' No more than that can

4343reasonably be required. The oath does not ask for certainty and

4354does not preclude a change in one's belief.").

436337. In the instant case, it is undisputed that Respondent

4373failed to disclose, as required by Item 9 on the Application

4384form, the full extent of his criminal history; however, the

4394evidence adduced at hearing (specifically, the unrebutted

4401testimony of Respondent on the subject, which the undersigned

4410has credited) establishes that, in responding to the question in

4420the manner that he did, Respondent did not intend to deceive or

4432defraud Petitioner about his criminal background. Furthermore,

4439it does not appear that Respondent's failure to provide all of

4450the details required by Item 9 resulted in his receiving a

4461license for which he was not qualified. There has been no

4472showing that, at the time of his Application, Respondent was not

4483honest, truthful, trustworthy and of good character, or was

4492otherwise not qualified for licensure, and therefore there is no

4502reason to believe that, had he disclosed his criminal history in

4513its entirety, the outcome of the licensure application review

4522process would have been different. 3/

452838. The facts of the instant case are strikingly similar

4538to those that were present in the case of Department of Business

4550and Professional Regulation v. Solomon , 2000 WL 564801 (Fla.

4559DOAH 2000)(Recommended Order), adopted in toto , (FREC July 19,

45682000)(Final Order). Solomon, like Respondent, was a licensed

4576real estate salesperson who was charged with having violated

4585Subsections (1)(e) and (m) of Section 475.25, Florida Statutes.

4594The "proof [presented at the final hearing] demonstrate[d] with

4603the requisite degree of certainty that [Solomon had] failed to

4613fully disclose his criminal history as required by [I]tem 9 on

4624the application" form that he had filled out on or about

4635June 16, 1997. Solomon had answered Item 9 in the affirmative

4646and, on an attachment to the application, disclosed that he had

4657pled guilty to "drug possession and carrying a concealed

4666weapon . . . 10 to 15 years ago" and that he had a "conviction

4681for driving under the influence in 1984," but failed to reveal

4692that: on September 17, 1979, upon entry of a plea of guilty, he

4705had been found guilty of "Shooting into an Occupied Dwelling";

4715on August 19, 1981, he had been convicted of "misdemeanor

4725Battery, Resisting an Officer Without Violence, and Disorderly

4733Conduct"; and on June 17, 1985, upon entry of a plea of guilty,

4746he had been adjudicated guilty of "Leaving the Scene of an

4757Accident Involving Personal Injury." Crediting Solomon's

4763testimony, the Administrative Law Judge (Judge William J.

4771Kendrick) found that Solomon "did not intend to mislead or

4781deceive the Department," explaining as follows:

4787Respondent's testimony was candid, the

4792nature of the incidents he disclosed were

4799serious, as opposed to trivial, and his

4806assumption that the complete details of his

4813criminal history would be revealed when the

4820Department (as it stated it would do on the

4829application) checked his response against

4834local, state, and federal records was well

4841founded. Consequently, while his response

4846to item 9 on the application was incomplete,

4854Respondent's failure to more fully detail

4860his criminal history is more appropriately

4866characterized as a careless, thoughtless, or

4872heedless act as opposed to a willful or

4880intentional effort to mislead the Department

4886as to the true character of his history.

4894Having determined that Solomon's "failure to completely disclose

4902his criminal history part[ook] more of a careless, thoughtless,

4911or heedless act than one done with bad motive or spite," Judge

4923Kendrick concluded that Solomon's "failing" was therefore not a

4932violation of Subsection (1)(m) of Section 475.25, Florida

4940Statutes, but did constitute a violation of Subsection (2) of

4950Rule 61J2-2.027(2), Florida Administrative Code, and thus

4957Subsection (1)(e) of Section 475.25, Florida Statutes. Judge

4965Kendrick then engaged in the following discussion regarding the

"4974appropriate penalty that should be imposed" for this violation

4983of Subsection (1)(e) of Section 475.25, Florida Statutes:

4991Having resolved that Respondent violated the

4997provisions of Subsection 475.25(1)(e),

5001Florida Statutes, by having failed to comply

5008with the requirements of Rule 61J2-2.027(2),

5014Florida Administrative Code, it remains to

5020resolve the appropriate penalty that should

5026be imposed. Pertinent to this issue, Rule

503361J2-24.001(3)(f), Florida Administrative

5036Code, provides that for a violation of

5043Subsection 475.25(1)(e), Florida Statutes,

"5047[t ]he usual action of the Commission shall

5055be to impose a penalty from an 8 year

5064suspension to revocation and an

5069administrative fine of $1,000." Here,

5075giving due regard for the Commission's usual

5082penalty, as well as the aggravating and

5089mitigating circumstances set forth in Rule

509561J2-24.001(4), Florida Administrative Code,

5099including the time that has elapsed since

5106the offenses occurred and the absence of any

5114proof that the Department (given the nature

5121of the offenses) would have altered its

5128decision (to approve Respondent's

5132application for licensure) had it known of

5139Respondent's convictions, an appropriate

5143penalty for the violation found is a

5150suspension for 30 days and an administrative

5157fine of $250.

5160Judge Kendrick's Recommended Order was adopted in its entirety

5169by Petitioner in a Final Order issued on July 19, 2000.

518039. There being no apparent reason why it should not do

5191so, Petitioner should treat Respondent as it did the similarly

5201situated Solomon and find Respondent guilty of having violated

5210Rule 61J2-2.027(2), Florida Administrative Code, and therefore

5217Subsection (1)(e) of Section 475.25, Florida Statutes, as

5225alleged in Count II of the Administrative Complaint, suspend his

5235real estate salesperson license for 30 days and fine him $250.00

5246for having committed such a violation, and dismiss the charge

5256made in Count I of the Administrative Complaint that he "has

5267obtained a license by means of fraud, misrepresentation, or

5276concealment in violation of Section 475.25(1)(m)," Florida

5283Statutes. See Nordheim v. Department of Environmental

5290Protection , 719 So. 2d 1212 (Fla. 3d DCA 1998) ; Plante v.

5301Department of Business and Professional Regulation, Division of

5309Pari-Mutuel , 716 So. 2d 790 (Fla. 4th DCA 1998); and Gessler v.

5321Department of Business and Professional Regulation , 627 So. 2d

5330501 (Fla. 4th DCA 1993.

5335RECOMMENDATION

5336Based upon the foregoing Findings of Fact and Conclusions

5345of Law, it is hereby

5350RECOMMENDED that Petitioner issue a final order dismissing

5358Count I of the Administrative Complaint, finding Respondent

5366guilty of the violation alleged in Count II of the

5376Administrative Complaint, and suspending his real estate

5383salesperson license for 30 days and fining him $250.00 for

5393having committed this violation.

5397DONE AND ENTERED this 10th day of August, 2001, in

5407Tallahassee, Leon County, Florida.

5411___________________________________

5412STUART M. LERNER

5415Administrative Law Judge

5418Division of Administrative Hearings

5422The DeSoto Building

54251230 Apalachee Parkway

5428Tallahassee, Florida 32399-3060

5431(850) 488- 9675 SUNCOM 278-9675

5436Fax Filing (850) 921-6847

5440www.doah.state.fl.us

5441Filed with the Clerk of the

5447Division of Administrative Hearings

5451this 10th day of August, 2001.

5457ENDNOTES

54581/ As a general rule, a licensee may not be disciplined for

5470conduct engaged in prior to licensure. An exception to this

5480general rule exists, however, where the prelicensure conduct in

5489question is the falsification of the licensee's licensure

5497application. See Taylor v. Department of Professional

5504Regulation , 534 So. 2d 782 (Fla. 1st DCA 1988); and Board of

5516Medicine v. Mata , 561 So. 2d 364 (Fla. 1st DCA 1990).

55272/ Subsection (2) of Section 475.25, Florida Statutes (a

5536statutory provision not cited in the Administrative Complaint

5544issued in the instant case) provides that a licensed real estate

5555salesperson's "license may be revoked or canceled if it was

5565issued through the mistake or inadvertence of the commission."

5574This subsection, in contrast to subsection (1)(m )of Section

5583475.25 (one of the subsections upon which Petitioner is relying

5593in seeking the revocation of Respondent's license), authorizes

5601the Commission to revoke a license that was issued based upon

5612erroneous information provided by the licensee concerning the

5620licensee's qualifications, regardless of whether the licensee,

5627in providing such information, had the intent to deceive.

56363/ It therefore cannot be said that Respondent's license was

5646issued as a result of "mistake or inadvertence," within the

5656meaning of Subsection (2) of Section 475.25, Florida Statutes.

5665COPIES FURNISHED:

5667Donna K. Ryan, Esquire

5671Department of Business and Professional Regulation

5677Post Office Box 1900

5681Orlando, Florida 32802-1900

5684Steven W. Johnson, Esquire

56881801 East Colonial Drive

5692Suite 101

5694Orlando, Florida 32803

5697Jack Hisey, Deputy Division Director

5702Department of Business and Professional Regulation

5708Division of Real Estate

5712400 West Robinson Street

5716Post Office Box 1900

5720Orlando, Florida 32802-1900

5723Hardy L. Roberts, III, General Counsel

5729Department of Business and Professional Regulation

5735Northwood Centre

57371940 North Monroe Street

5741Tallahassee, Florida 32399-2202

5744NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5750All parties have the right to submit written exceptions within

576015 days from the date of this Recommended Order. Any exceptions

5771to this Recommended Order should be filed with the agency that

5782will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 08/16/2002
Proceedings: Mandate filed.
PDF:
Date: 12/31/2001
Proceedings: Letter to DOAH from the District Court of Appeal filed. DCA Case No. 5D01-3843
PDF:
Date: 11/30/2001
Proceedings: Final Order filed.
PDF:
Date: 10/17/2001
Proceedings: Agency Final Order
PDF:
Date: 08/29/2001
Proceedings: Petitioner`s Exceptions to Recommended Order (filed via facsimile).
PDF:
Date: 08/24/2001
Proceedings: Motion for Enlargement of Time in Which to File Exceptions to Recommended Order (filed by Petitioner via facsimile).
PDF:
Date: 08/10/2001
Proceedings: Recommended Order
PDF:
Date: 08/10/2001
Proceedings: Recommended Order issued (hearing held July 10, 2001) CASE CLOSED.
PDF:
Date: 08/10/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 08/09/2001
Proceedings: Proposed Recommended Order (filed by Respondent via facsimile).
PDF:
Date: 08/08/2001
Proceedings: Petitioner`s Proposed Recommended Order (filed via facsimile).
Date: 07/30/2001
Proceedings: Transcript (of Final Hearing) filed.
PDF:
Date: 07/13/2001
Proceedings: Respondent`s Exhibit 10 (filed via facsimile).
Date: 07/10/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 06/29/2001
Proceedings: Amended Notice of Video Teleconference issued. (hearing scheduled for July 10, 2001; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL, amended as to Tallahassee location).
PDF:
Date: 06/20/2001
Proceedings: Joint Response to Pre-Hearing Order (filed via facsimile).
PDF:
Date: 05/15/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 05/15/2001
Proceedings: Notice of Hearing by Video Teleconference issued (video hearing set for July 10, 2001; 9:00 a.m.; Fort Lauderdale and Tallahassee, FL).
PDF:
Date: 05/11/2001
Proceedings: Notice of Appearance as Co-counsel (filed by R. Soliman).
PDF:
Date: 05/11/2001
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 04/30/2001
Proceedings: Initial Order issued.
PDF:
Date: 04/27/2001
Proceedings: Amended Election of Rights filed.
PDF:
Date: 04/27/2001
Proceedings: Administrative Complaint filed.
PDF:
Date: 04/27/2001
Proceedings: Agency referral filed.

Case Information

Judge:
STUART M. LERNER
Date Filed:
04/27/2001
Date Assignment:
07/09/2001
Last Docket Entry:
08/16/2002
Location:
Fort Lauderdale, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
Suffix:
PL
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (5):

Related Florida Rule(s) (3):