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.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION , )

DIVISION OF REAL ESTATE , )

)

Petitioner, )

)

vs. ) Case No. 01-1599PL

)

MARK FRANCIS THRENHAUSSER, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

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

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

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

duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Donna K. Ryan, Esquire

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent : Steven W. Johnson, Esquire

1801 East Colonial Drive

Suite 101

Orlando, Florida 32803

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Administrative Complaint, and, if so, what disciplinary action

should be taken against him.

PRELIMINARY STATEMENT

On December 14, 2000, Petitioner filed an Administrative

Complaint against Respondent, a Florida-licensed real estate

salesperson, alleging that Respondent had failed to make certain

disclosures regarding his criminal history on the application

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

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

by means of fraud, misrepresentation, or concealment in

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

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

61J2-2.027(2), Fla. Admin. Code," in violation of Section

475.25(1)(e), Florida Statutes (Count II). Through the

submission of a completed Amended Election of Rights form,

Respondent denied the allegations of wrongdoing made in the

Administrative Complaint and requested "a formal hearing

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

Administrative Law Judge] to be appointed by the Division of

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

referred to the Division of Administrative Hearings (Division)

for the assignment of a Division Administrative Law Judge to

conduct the hearing Respondent had requested.

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

2001. Five witnesses testified at the hearing : Catherine

Rivera, an investigator with Petitioner; Respondent; Christopher

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

addition to the testimony of these five witnesses, 11 exhibits

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

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

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

undersigned established a deadline (ten days from the date of

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

filing of proposed recommended orders.

A Transcript of final hearing (consisting of one volume)

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

Respondent filed their Proposed Recommended Orders on August 8,

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

submittals have been carefully considered by the undersigned.

FINDINGS OF FACT

Based upon the evidence adduced at the final hearing and

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

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

Florida-licensed real estate salesperson. He holds license

number SL-0665186.

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

Florida Realty in Fort Lauderdale, Florida.

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

his real estate salesperson license, Respondent was a defendant

in several criminal proceedings. His legal problems stemmed

from his use of alcohol.

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

No. 77006724MM19A, Respondent was adjudicated guilty of one

count of possessing drugs without a prescription and fined

$110.00.

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

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

Respondent was adjudicated guilty of one count of driving with a

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

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

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

resisting arrest without violence. (It is unclear whether or

not adjudication of guilt was withheld.)

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

Court Case No. 800011068MMA02, Respondent was sentenced for

prowling. Adjudication of guilt was withheld.

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

Case No. 81017282MM10A, Respondent was adjudicated guilty of

resisting arrest/obstructing justice without violence and placed

on probation for four months and fined $78.50.

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

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

sentence, to attend Alcoholics Anonymous (AA) meetings.

10. Since that time, Respondent has attended AA meetings

on a regular basis.

11. Respondent was successful in his efforts to end his

reliance upon alcohol. He has been sober since approximately

1992.

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

Broward County for prostitution/lewdness/assignation in

violation of a City of Fort Lauderdale municipal ordinance. The

case was docketed as Broward County Court Case No.

97033300MO10A. Respondent initially entered a plea of not

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

Affidavit to Enter Plea, Waiver of Rights and Stipulation

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

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

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

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

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

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

abstentia." Respondent left the executed Affidavit with his

attorney, Christopher Cloney, Esquire, with the understanding

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

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

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

the court accepted Respondent's plea, withheld adjudication of

guilt, and fined Respondent $300.00. Neither Respondent nor

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

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

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

Respondent a bill and advised Respondent of the outcome of the

case. Respondent had not made any inquiry regarding the status

of his Affidavit and the disposition of his case prior to

hearing from Mr. Cloney.

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

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

14. The Application was subsequently filed with

Petitioner.

15. The Application contained the following signed and

notarized "Affidavit of Applicant":

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 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 or its representatives, by him/her

in response to inquiries concerning his/her

qualifications.

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

apply for licensure read as follows:

Have you ever been convicted of a crime,

found guilty, or entered a plea of guilty or

nolo contendre (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.

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

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

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

"attach the details including dates and outcome, including any

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

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

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

18. Respondent filled out the Application at the Gold

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

19. He filled out the application hurriedly because he

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

the deadline.

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

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

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

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

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

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

of these previous encounters with the law.

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

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

1998, had been filed and accepted by the court in Broward County

Court Case No. 97033300MO10A.

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

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

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

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

1984 "DUI," and not bother to mention any other offense. In so

doing, Respondent did not intend to mislead or deceive

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

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

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

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

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

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

of fraud or anything that was dishonest."

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

Respondent a real estate salesperson license.

CONCLUSIONS OF LAW

24. The Florida Real Estate Commission (Commission) is

statutorily empowered to take disciplinary action against

Florida-licensed real estate salespersons based upon any of the

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

disciplinary action may include one or more of the following

penalties : license revocation; license suspension (for a period

not exceeding ten years); imposition of an administrative fine

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

issuance of a reprimand; and placement of the licensee on

probation. Section 475.25(1), Florida Statutes.

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

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

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

service or certified mail, an administrative complaint which

affords reasonable notice to the licensee of facts or conduct

which warrant the intended action and unless the licensee has

been given an adequate opportunity to request a proceeding

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

Statutes.

26. The licensee must be afforded an evidentiary hearing

if, upon receiving such written notice, the licensee disputes

the alleged facts set forth in the administrative complaint.

Sections 120.569(1) and 120.57, Florida Statutes.

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

that the licensee engaged in the conduct, and thereby committed

the violations, alleged in the administrative complaint. Proof

greater than a mere preponderance of the evidence must be

presented. Clear and convincing evidence of the licensee's

guilt is required. See Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

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

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

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

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

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

or licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

28. Clear and convincing evidence "requires more proof

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

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

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

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

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

the witnesses testify must be distinctly remembered; the

testimony 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 a firm belief or conviction, without hesitancy, as to

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

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

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

1983).

29. In determining whether Petitioner has met its burden

of proof, it is necessary to evaluate its evidentiary

presentation in light of the specific factual allegations made

in the administrative complaint. Due process prohibits an

agency from taking disciplinary action against a licensee based

upon conduct not specifically alleged in the agency's

administrative complaint or other charging instrument. See

Hamilton v. Department of Business and Professional Regulation ,

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

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

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

1st DCA 1996).

30. Furthermore, "the conduct proved must legally fall

within the statute or rule claimed [in the administrative

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

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

1992). In deciding whether "the statute or rule claimed to have

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

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

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

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

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

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

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

(Fla. 1st DCA 1977).

31. In those cases where the proof is sufficient to

establish that the licensee committed the violations alleged in

the administrative complaint and therefore disciplinary action

is warranted, it is necessary, in determining what disciplinary

action should be taken against the licensee, to consult

Petitioner's "disciplinary guidelines," which impose

restrictions and limitations on the exercise of Petitioner's

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

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

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

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

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

1985)("[A ]gency rules and regulations, duly promulgated under

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

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

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

2d 1083, 1084 (Fla. 1st 1989)("Until amended or abrogated, an

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

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

is required to comply with its disciplinary guidelines in taking

disciplinary action against its employees).

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

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

in pertinent part, as follows:

(1 ) Pursuant to s.455.2273, Florida

Statutes, the Commission sets forth below a

range of disciplinary guidelines from which

disciplinary penalties will be imposed upon

licensees guilty of violating Chapters 455

or 475, Florida Statutes. The purpose of

the disciplinary guidelines is to give

notice to licensees of the range of

penalties which normally will be imposed for

each count during a formal or an informal

hearing. For purposes of this rule, the

order of penalties, ranging from lowest to

highest, is : reprimand, fine, probation,

suspension, and revocation or denial.

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

combinations of these penalties are

permissible by law. . . .

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

Statutes, the Commission may, in addition to

other disciplinary penalties, place a

licensee on probation. The placement of the

licensee on probation shall be for such a

period of time and subject to such

conditions as the Commission may specify.

Standard probationary conditions may

include, but are not limited to, requiring

the licensee : to attend pre-licensure

courses; to satisfactorily complete a pre-

licensure course; to attend post-licensure

courses; to satisfactorily complete a post-

licensure course; to attend continuing

education courses; to submit to and

successfully complete the state-administered

examination; to be subject to periodic

inspections and interviews by a DPR

investigator; if a broker, to place the

license on a broker-salesperson status; or,

if a broker, to file escrow account status

reports with the Commission or with a DPR

investigator at such intervals as may be

prescribed.

(3 ) The penalties are as listed unless

aggravating or mitigating circumstances

apply pursuant to paragraph (4). The verbal

identification of offenses is descriptive

only; the full language of each statutory

provision cited must be consulted in order

to determine the conduct included. . . .

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

Violated any rule or order or provision

under Chapters 475 and 455, F.S.

RECOMMENDED RANGE OF PENALTY : The usual

action of the Commission shall be to impose

a penalty from an 8 year suspension to

revocation and an administrative fine

of $1,000 . . . .

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

Obtained a license by fraud,

misrepresentation or concealment

RECOMMENDED RANGE OF PENALTY : In the case

of a licensee who renews the license without

having complied with Rule 61J2-3.009 and the

act is discovered by the BPR, the usual

action of the Commission shall be to impose

a penalty of revocation. In the case of a

licensee who renews the license without

having complied with Rule 61J2-3.009 and the

licensee brings the matter to the attention

of the BPR, the usual action of the

Commission shall be to impose a penalty of a

$1,000 administrative fine. In all other

cases, the usual action of the Commission

shall be to impose a penalty of revocation

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

(4)(a ) When either the Petitioner or

Respondent is able to demonstrate

aggravating or mitigating circumstances to

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

Statutes, hearing or to a Division of

Administrative Hearings hearing officer in a

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

clear and convincing evidence, the

Commission or hearing officer shall be

entitled to deviate from the above

guidelines in imposing or recommending

discipline, respectively, upon a licensee.

Whenever the Petitioner or Respondent

intends to introduce such evidence to the

Commission in a s. 120.57(2), Florida

Statutes, hearing, advance notice of no less

than seven (7) days shall be given to the

other party or else the evidence can be

properly excluded by the Commission.

(b ) Aggravating or mitigating circumstances

may include, but are not limited to, the

following:

1. The severity of the offense.

2. The degree of harm to the consumer or

public.

3. The number of counts in the

Administrative Complaint.

4. The number of times the offenses

previously have been committed by the

licensee.

5. The disciplinary history of the

licensee.

6. The status of the licensee at the time

the offense was committed.

7. The degree of financial hardship

incurred by a licensee as a result of the

imposition of a fine or suspension of the

license.

8. Violation of the provision of Chapter

475, Florida Statutes, where in a letter of

guidance as provided in s. 455.225(3),

Florida Statutes, previously has been issued

to the licensee.

33. The Administrative Complaint issued in the instant

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

of Section 475.25, Florida Statutes, by obtaining his real

estate salesperson license by submitting to Petitioner an

application for licensure in which he failed to disclose his

complete criminal history.

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

authorizes the Commission to take disciplinary action against a

Florida-licensed real estate salesperson who "[h ]as 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."

35. Among the rules issued under Chapter 475, Florida

Statutes, the violation of which subjects a licensee to

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

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

Administrative Code, which provides as follows:

The applicant must make it possible to

immediately begin the inquiry as to whether

the applicant is honest, truthful,

trustworthy, of good character, and bears a

good reputation for fair dealings, and will

likely make transactions and conduct

negotiations with safety to investors and to

those with whom the applicant may undertake

a relation of trust and confidence. The

applicant is required to disclose:

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

judgment or decree has been rendered against

the applicant for fraud or dishonest

dealings, or

(b ) if now a patient of a mental health

facility or similar institution for the

treatment of mental disabilities, or

(c ) if ever called by, or done business

under any other name, or alias, than the

name signed on the application, with

sufficient information to enable the

Commission to investigate the circumstances,

or

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

license revoked, suspended, or otherwise

acted against, or had an application for

such licensure denied, by the real estate

licensing agency of another state,

territory, or country.

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

authorizes the Commission to take disciplinary action against a

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

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

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

be shown not only that the licensee provided false or misleading

information on his licensure application, but also that the

licensee knowingly did so with the intent to deceive and that

the license was issued based upon the false or misleading

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

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

652, 654 (Fla. 5th DCA 1998)("[S ]ection 475.25(1)(m), Florida

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

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

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

1136 (Fla. 1st DCA 1992)("It is clear that Section 475.25(1)(b)

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

Commission to discipline a licensee guilty of fraud,

misrepresentation, concealment, false promises, false pretenses,

dishonest dealing by trick, scheme or device, culpable

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

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

favor of the one against whom the penalty would be

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

(the portion of the statute which appellant was charged with

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

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

that it is contemplated that an intentional act be proved before

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

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

fraudulent representation are : a false statement pertaining to

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

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

Gentry v. Department of Professional and Occupational

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

provision prohibiting licensed physicians from "[m ]aking

misleading, deceptive and untrue representations in the practice

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

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

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

deceptive and untrue representations must be made willfully

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

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

of a government document [in this case, an employment

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

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

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

control the question of intent. Were a bare inaccuracy

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

the charge would be subsumed within the distinct inquiry of

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

facts. A system of real people, pragmatic in their

expectations, would not easily tolerate a rule under which the

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

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

accuracy. Instead, an employee must certify that the answers

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

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

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

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

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

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

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

evidence adduced at hearing (specifically, the unrebutted

testimony of Respondent on the subject, which the undersigned

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

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

defraud Petitioner about his criminal background. Furthermore,

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

the details required by Item 9 resulted in his receiving a

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

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

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

otherwise not qualified for licensure, and therefore there is no

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

its entirety, the outcome of the licensure application review

process would have been different. 3/

38. The facts of the instant case are strikingly similar

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

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

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

2000)(Final Order). Solomon, like Respondent, was a licensed

real estate salesperson who was charged with having violated

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

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

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

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

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

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

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

pled guilty to "drug possession and carrying a concealed

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

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

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

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

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

Battery, Resisting an Officer Without Violence, and Disorderly

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

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

Accident Involving Personal Injury." Crediting Solomon's

testimony, the Administrative Law Judge (Judge William J.

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

deceive the Department," explaining as follows:

Respondent's testimony was candid, the

nature of the incidents he disclosed were

serious, as opposed to trivial, and his

assumption that the complete details of his

criminal history would be revealed when the

Department (as it stated it would do on the

application) checked his response against

local, state, and federal records was well

founded. Consequently, while his response

to item 9 on the application was incomplete,

Respondent's failure to more fully detail

his criminal history is more appropriately

characterized as a careless, thoughtless, or

heedless act as opposed to a willful or

intentional effort to mislead the Department

as to the true character of his history.

Having determined that Solomon's "failure to completely disclose

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

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

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

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

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

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

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

Kendrick then engaged in the following discussion regarding the

"appropriate penalty that should be imposed" for this violation

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

Having resolved that Respondent violated the

provisions of Subsection 475.25(1)(e),

Florida Statutes, by having failed to comply

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

Florida Administrative Code, it remains to

resolve the appropriate penalty that should

be imposed. Pertinent to this issue, Rule

61J2-24.001(3)(f), Florida Administrative

Code, provides that for a violation of

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

"[t ]he usual action of the Commission shall

be to impose a penalty from an 8 year

suspension to revocation and an

administrative fine of $1,000." Here,

giving due regard for the Commission's usual

penalty, as well as the aggravating and

mitigating circumstances set forth in Rule

61J2-24.001(4), Florida Administrative Code,

including the time that has elapsed since

the offenses occurred and the absence of any

proof that the Department (given the nature

of the offenses) would have altered its

decision (to approve Respondent's

application for licensure) had it known of

Respondent's convictions, an appropriate

penalty for the violation found is a

suspension for 30 days and an administrative

fine of $250.

Judge Kendrick's Recommended Order was adopted in its entirety

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

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

so, Petitioner should treat Respondent as it did the similarly

situated Solomon and find Respondent guilty of having violated

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

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

alleged in Count II of the Administrative Complaint, suspend his

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

for having committed such a violation, and dismiss the charge

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

obtained a license by means of fraud, misrepresentation, or

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

Statutes. See Nordheim v. Department of Environmental

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

Department of Business and Professional Regulation, Division of

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

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

501 (Fla. 4th DCA 1993.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that Petitioner issue a final order dismissing

Count I of the Administrative Complaint, finding Respondent

guilty of the violation alleged in Count II of the

Administrative Complaint, and suspending his real estate

salesperson license for 30 days and fining him $250.00 for

having committed this violation.

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

Tallahassee, Leon County, Florida.

___________________________________

STUART M. LERNER

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 10th day of August, 2001.

ENDNOTES

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

conduct engaged in prior to licensure. An exception to this

general rule exists, however, where the prelicensure conduct in

question is the falsification of the licensee's licensure

application. See Taylor v. Department of Professional

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

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

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

statutory provision not cited in the Administrative Complaint

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

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

issued through the mistake or inadvertence of the commission."

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

475.25 (one of the subsections upon which Petitioner is relying

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

the Commission to revoke a license that was issued based upon

erroneous information provided by the licensee concerning the

licensee's qualifications, regardless of whether the licensee,

in providing such information, had the intent to deceive.

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

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

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

COPIES FURNISHED:

Donna K. Ryan, Esquire

Department of Business and Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

Steven W. Johnson, Esquire

1801 East Colonial Drive

Suite 101

Orlando, Florida 32803

Jack Hisey, Deputy Division Director

Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Hardy L. Roberts, III, General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.