08-002096PL Department Of Business And Professional Regulation, Division Of Real Estate vs. Romanda Jeanette Maxwell Status: Closed Recommended Order on Tuesday, July 15, 2008.

Summary: Respondent failed to report a criminal conviction on real estate associates license application. Recommend that Respondent`s license be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 08-2096PL

)

ROMANDA JEANETTE MAXWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings

by its duly-designated Administrative Law Judge, Jeff B. Clark,

held a formal hearing in the above-styled case on June 4, 2008,

in Kissimmee, Florida.

APPEARANCES

For Petitioner: Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801-1757

For Respondent: Daniel Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint, and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On March 27, 2008, Petitioner, Department of Business and

Professional Regulation, Division of Real Estate, issued a

two-count Administrative Complaint which charged that

Respondent, Romanda Jeanette Maxwell, a licensed real estate

sales associate, violated certain provisions of Section 475.25,

Florida Statutes (2004). 1/ Count I alleged that Respondent

violated the provisions of Subsection 475.25(1)(m), Florida

Statutes, by having "obtained a license by means of fraud,

misrepresentation, or concealment"; and Count II alleged that

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

by having "failed to comply with the requirements of Rule

61J2-2.027(2) of the Florida Administrative Code." The gravamen

of the charges was Petitioner's contention that in applying for

licensure as a real estate sales associate, Respondent failed to

disclose her criminal history.

Respondent, through her attorney, filed a Petition for

Formal Hearing wherein she disputed the allegations of fact

contained in the Administrative Complaint.

On April 28, 2008, the Division of Administrative Hearings

received Petitioner's referral and request for the assignment of

an Administrative Law Judge to conduct a formal hearing pursuant

to Sections 120.569 and 120.60 and Subsection 120.57(1), Florida

Statutes (2007). On the same day, an Initial Order was sent to

both parties requesting mutually convenient dates for a final

hearing. Based on the response of the parties, the final

hearing was scheduled for June 4, 2008, in Kissimmee, Florida.

The final hearing was held as scheduled. At the hearing,

Respondent testified in her own behalf. Petitioner's Exhibits 1

through 5 were received into evidence without objection and

marked accordingly. Official notice was taken of Chapter

425.225, Florida Statutes, and Florida Administrative Code

Chapter Rule 61J2.

A Transcript of the hearing was filed June 10, 2008. Both

parties timely filed Proposed Recommended Orders which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state government licensing and

regulatory agency charged with the duty and responsibility to

prosecute administrative complaints pursuant to the laws of the

State of Florida, in particular Section 20.165, Florida Statutes

(2007); Chapters 120, 455, and 475, Florida Statutes (2007); and

the rules promulgated pursuant thereto.

2. Respondent is now, and was at all times material

hereto, a licensed real estate associate in the State of

Florida, having been issued License No. SL-3144440.

3. On or about May 5, 2005, Respondent filed an

application with Petitioner for licensure as a real estate sales

associate. Pertinent to this case, Item 1 on the Background

Information section of the application required that Respondent

answer "Yes" or "No" (by checking the appropriate box) to the

following question:

Have you ever been convicted of a crime,

found guilty, or entered a plea of guilty or

nolo contendere (no contest), even if you

received a withhold of adjudication? This

question applies to any violation of the

laws of any municipality, county, state or

nation, including felony, misdemeanor and

traffic offenses (but not parking, speeding,

inspection, or traffic signal violations),

without regard to whether you were placed on

probation, had adjudication withheld, were

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." "YOUR ANSWER TO THIS

QUESTION WILL BE CHECKED AGAINST LOCAL,

STATE AND FEDERAL RECORDS. FAILURE TO

ANSWER THIS QUESTION ACCURATELY MAY RESULT

IN THE DENIAL OR REVOCATION OF YOUR LICENSE.

IF YOU DO NOT FULLY UNDERSTAND THIS

QUESTION, CONSULT WITH AN ATTORNEY OR

CONTACT THE DEPARTMENT.

Respondent answered the question by checking the box

marked "No."

4. The application concluded with Respondent's Attest

Statement before a Notary Public of the State of Florida as

follows:

I have read the questions in this

application and have answered them

completely and truthfully to the best of my

knowledge.

* * *

I understand the types of misconduct for

which disciplinary proceedings may be

initiated.

5. On October 7, 2005, Respondent passed the sales

associate examination. From October 7, 2005, to November 14,

2005, her license was in inactive status. From November 14,

2005, through the date of hearing, Respondent has been licensed

as an active sales associate with Perfect Gulf Properties, Inc.,

doing business as Century 21 Sunshine Realty.

6. Following approval of Respondent's application and her

licensure as a real estate associate, Petitioner received the

results of a state and federal records search which revealed a

criminal history not disclosed on Respondent's application.

That records search revealed a criminal conviction in the

Circuit Court, Eighteenth Judicial Circuit, Brevard County,

Florida. On January 24, 1991, Respondent was convicted of

robbery with a weapon, not deadly, a first-degree felony, and

sentenced to three and a half years' incarceration.

7. Respondent maintains that based on a telephone

conversation with someone at the Brevard County Courthouse and

the fact that she is/was a notary, registered voter, served on a

jury, and is a licensed minister, that the record of her

criminal activity had been expunged. This is not credible.

8. Respondent did not initiate any action to cause her

criminal record to have been expunged or sealed by court order

pursuant to Section 943.058, Florida Statutes, nor did she make

any reasonably, prudent inquiry regarding the status of her

criminal record prior to answering questions regarding same and

affirming to accuracy of her application for licensure.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

(2007).

10. Where, as here, Respondent proposes to take punitive

action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence.

Department of Banking and Finance v. Osborne Stern and Co. ,

670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

11. "'[C]lear and convincing evidence requires that the

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

witnesses testify must be distinctly remembered; the 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).

12. In cases of this nature, the disciplinary action taken

may be based only upon the offenses specifically alleged in the

Administrative Complaint. Kinney v. Department of State ,

501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of

Professional Regulation, Board of Medical Examiners , 465 So. 2d

1324 (Fla. 1st DCA 1985); and Hunter v. Department of

Professional Regulation , 458 So. 2d 842 (Fla. 2d DCA 1984).

Finally, in determining whether Respondent violated the

provisions of Subsection 475.25(1), Florida Statutes, as alleged

in the Administrative Complaint, one "must bear in mind that it

is, in effect, a penal statute. . . . This being true, the

statute must be strictly construed and no conduct is to be

regarded as included within it that is not reasonably proscribed

by it." Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

13. Subsection 475.25(1), Florida Statutes, provides that

Petitioner:

[M]ay deny an application for licensure,

registration, or permit, or renewal thereof;

may place a licensee, registrant, or

permittee on probation; may suspend a

license, registration, or permit for a

period not exceeding 10 years; may revoke a

license, registration, or permit; may impose

an administrative fine not to exceed $1,000

for each count or separate offense; and may

issue a reprimand, and any or all of the

foregoing, if it finds that the licensee,

registrant, permittee, or applicant:

* * *

(e) Has 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.

* * *

(m) Has obtained a license by means of

fraud, misrepresentation, or concealment.

14. Pertinent to the alleged violation of Subsection

475.25(1)(e), Florida Statutes, Florida Administrative Code Rule

61J2-2.027(2) provides:

(2) 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 fraudulent or

dishonest dealings, or . . . .

15. To establish that a licensee committed a violation of

Subsection 475.25(1)(m), Florida Statutes, as alleged in Count I

of the Administrative Complaint, Petitioner must show not only

that the licensee provided false or misleading information on

his application, but that she did so knowingly and

intentionally. Munch v. Department of Professional Regulation ,

592 So. 2d 1136, 1143-1144 (Fla. 1st DCA 1992) ("[A]pplying to

the words used in [Section 475.25(1)(m)] their usual and natural

meaning, it is apparent that it is contemplated that an

intentional act be proved before a violation may be found.")

Walker v. Department of Business and Professional Regulation ,

705 So. 2d 652 (Fla. 5th DCA 1998).

16. Here, the evidence demonstrates with the requisite

degree of certainty that Respondent failed to disclose her

criminal history as required by the application. What remains

to be resolved is whether Respondent's failure may be reasonably

characterized as "willful," so as to constitute a violation of

Subsection 475.25(1)(m), Florida Statutes, or is more

appropriately characterized as careless or passive in character

so as to constitute a violation of Florida Administrative Code

Rule 61J2-2.027(2) and, therefore, Subsection 475.25(1)(e),

Florida Statutes. To reach a resolution of the issue, it is

necessary to resolve whether Respondent's failure to disclose

was "willful" or "intentional."

17. Where, as here, the Legislature has not defined the

words used in a phrase, the language should usually be given its

plain and ordinary meaning. Southeastern Fisheries Association,

Inc. v. Department of Natural Resources , 453 So. 2d 1351 (Fla.

1984). The American Heritage Dictionary of the English

Language, New College Edition (1979), defines "willful" as "said

or done in accordance with one's will; deliberate." Perhaps

more informative to the instant case, Black's Law Dictionary,

Fifth Edition (1979), defines "willful" as follows:

Proceeding from a conscious motion of the

will; voluntary. Intending the result which

actually comes to pass; designed;

intentional; not accidental or involuntary.

An act or omission is "willfully" done, if

done voluntarily and intentionally and with

the specific intent to do something the law

forbids, or with the specific intent to fail

to do something the law requires to be done;

that is to say, with bad purpose either to

disobey or to disregard the law.

Willful is a word of many meanings, its

construction often influenced by its

context. Screws v. United States , 325 U.S.

91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495.

The word [willfully] often denotes an act

which is intentional, or knowing, or

voluntary, as distinguished from accidental.

But when used in a criminal context it

generally means an act done with a bad

purpose; without justifiable excuse;

stubbornly, obstinately, perversely. The

word is also employed to characterize a

thing done without ground for believing it

is lawful or conduct marked by a careless

disregard whether or not one has the right

so to act. United States v. Murdock , 290

U.S. 389, 394, 395, 54 S.Ct. 223, 225, 78

L.Ed. 381.

Whatever the grade of the offense the

presence of the word "willful" in the

definition will carry with it the

implication that for guilt the act must have

been done willingly rather than under

compulsion and, if something is required to

be done by statute, the implication that a

punishable omission must be by one having

the ability and means to perform. In re

Trombley , 31 Cal.2d 801, 807, 193 P2d 734,

739.

A willful act may be described as one done

intentionally, knowingly, and purposely,

without justifiable excuse, as distinguished

from an act done carelessly, thoughtlessly,

heedlessly, or inadvertently. A willful act

differs essentially from a negligent act.

The one is positive and the other negative.

Premeditated; malicious; done with evil

intent, or with a bad motive or purpose, or

with indifference to the natural

consequences; unlawful; without legal

justification.

18. Applying to the words used in Subsection 475.25(1)(m),

Florida Statutes, their usual and customary meaning, it is

apparent that to establish a violation of that subsection in

this case, Petitioner must show not only that Respondent failed

to fully disclose her criminal history, but that she did so

"intentionally, knowingly, and purposely, without justifiable

excuse, as distinguished from . . . carelessly, thoughtlessly,

heedlessly, or inadvertently." Black's Law Dictionary, Fifth

Edition (1979), supra . Here, Respondent's failure to disclose

her criminal history reflects a reckless disregard for the

specific admonition requiring Petitioner "to verify the

expungement or sealing prior to answering "No." As such, her

patently incorrect answer is intentional and purposeful.

Consequently, Petitioner has demonstrated clearly and

convincingly that Respondent violated Subsection 475.25(1)(m),

Florida Statutes, as well as the provisions of Florida

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

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

19. Florida Administrative Code Rule 61J2-24.001(3)(f)

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 not to exceed $5,000."

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered adopting the

foregoing Findings of Fact and Conclusions of Law, and which,

for the violations found, Respondent's license be revoked and

that she be charged fees in accordance with Subsection

455.227(3), Florida Statutes.

DONE AND ENTERED this 15th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of July, 2008.

ENDNOTE

1/ All references herein are to Florida Statutes (2004), unless

otherwise noted.

COPIES FURNISHED :

Daniel Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-801

Orlando, Florida 32801-1757

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802 North

Orlando, Florida 32801

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.