98-002785 Division Of Real Estate vs. Alexander Calderone Status: Closed Recommended Order on Friday, November 13, 1998.

Summary: Evidence establishes that Respondent pleaded nolo contendere to misdemeanor; and therefore, his failure to note it on his application for licensure was a violation but not enough to revoke--only probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-2785

)

ALEXANDER CALDERONE, )

)

Respondent . )

___________________________________ )

RECOMMENDED ORDER

A hearing was held in this case in Sarasota, Florida, on

October 16, 1998, before Arnold H. Pollock, an Administrative Law

Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquir e

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Suite N-308

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Thomas S. Hudson, Esquire

1800 Second Street

Suite 960

Sarasota, Florida 34236

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether

Respondent’s license as a real estate salesperson in Florida

should be disciplined because of the matters alleged in the

Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated May 20, 1998, Richard T.

Farrell, Secretary of the Department of Business and Professional

Regulation, charged Respondent with having obtained his license

as a real estate salesperson by fraud, misrepresentation, or

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

Statutes, by indicating on his application for licensure that he

had never been convicted of, found guilty of, or entered a plea

of nolo contendere to a crime. In his answer to the

administrative complaint, Respondent’s counsel requested formal

hearing and this hearing ensued. At the hearing, Petitioner

presented the testimony of the Respondent. Respondent also

testified in his own behalf.

No transcript of the proceedings was furnished. At the

hearing, counsel for both parties submitted post-hearing matters

which were carefully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

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

Division of Real Estate, was the state agency responsible for the

licensing of real estate professionals and the regulation of the

real estate profession in Florida. Respondent was licensed as,

or applied for licensure as, a real estate salesperson.

2. On an evening in January 1980, when a young man of 29,

Respondent approached an undercover deputy sheriff in a public

park in Orlando, Florida, and suggested a homosexual act. Though

there was no sexual contact between Respondent and the officer,

the deputy identified himself and Respondent was arrested.

3. Respondent did not deny the contact and subsequently

pleaded nolo contendere to a misdemeanor charge of assignation

for a lewd act. He claims he did not know the legal

ramifications of his plea, and though he was placed on probation

for six months and fined $125.00 plus costs, he did not realize

he had been found guilty of the offense charged. He was also

instructed to obtain a letter from a psychiatrist prior to the

end of his probation, but saw only a general physician. He was

released from probation at the end of the six-month period

without providing the letter.

4. Respondent has had no involvement with the law since

that time. On April 12, 1996, some 15 1/2 years after the

offense, Respondent applied for licensure as a real estate

salesperson. Question 9 of the application form asks whether the

applicant had ever been convicted of a crime, found guilty, or

entered a plea of nolo contendere , even if adjudication was

withheld. Respondent answered “no” to that question. He also

signed the affidavit appearing on the application form which

indicated that he had carefully read the application and that all

his answers were true and correct as his knowledge, information

and records permitted. Thereafter, in reliance on Respondent’s

application, the Division issued Respondent a license as a real

estate salesperson.

5. Respondent claims he believed at the time he read the

form in issue his answer was correct. Though he had not

completely forgotten the incident, the application form did not

call it to mind. He asserts he did not intentionally falsify the

application or provide misleading answers, and claims he did not

know he could go to the Division for clarification,

notwithstanding this option is clearly stated on the application.

His claim is disingenuous and not believable.

6. Respondent has no disciplinary record with the Division

of Real Estate. He has worked for Lauren H. Meadows, a real

estate broker, in her office for over two years. She is familiar

with his character and his reputation for honesty and finds him

honest to a fault. He is always thorough and has no problems

with his co-workers. He is a giving and helpful person.

Ms. Meadows claims she has a lot of respect for the Respondent

and has never seen any indication of baseness or depravity in him

which would interfere with his practice of real estate.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter in this case. Section

120.57(1), Florida Statutes.

8. Petitioner seeks to revoke Respondent’s license as a

real estate salesperson because, it alleges, he obtained his

license by misrepresentation when he failed to indicate a prior

conviction for a misdemeanor on his application form, in

violation of Section 475.25(1)(m), Florida Statutes.

9. The burden of proof rests upon the Petitioner to

establish Respondent’s commission of the offense alleged by clear

and convincing evidence, Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

10. The evidence of record clearly establishes that

Respondent inaccurately answered question number 9 on his

application for licensure as a real estate salesperson. He

denied having been convicted of, found guilty of or entered a

plea of guilty of nolo contendere to a crime. Respondent might

reasonably contend he did not know that he had been found guilty,

an action by the court, because he did not serve any time in

prison after the trial. However, the entry of the plea of nolo

contendere was his act, and while he may not have known the

effect of his plea, it is impossible to reasonably believe he did

not know what his plea was. The form specifically referred to a

plea of nolo contendere , and that is how the Respondent pleaded.

His answer of “No” to the question in issue was, therefore, false

and constitutes misrepresentation.

11. Respondent argues that conviction of an offense

involving moral turpitude is required to deny a license under

Section 475.25, Florida Statutes, and that a misdemeanor offense

“which [does] not show a 'baseness or depravity’ which impugns [a

license holder’s] ability to deal fairly with the public” does

not warrant denial of a license. Citing Nelson v. Dept. of

Business and Professional Regulation , 707 So. 2d 378 (Fla. 5th

DCA 1998); Pearl v. Florida, Board of Real Estate , 394 So. 2d 189

(3rd DCA 1981).

12. Assuming, arguendo , that Respondent’s assignation for a

lewd act does not constitute moral turpitude, it was not for his

plea to or conviction of that offense that he was denied

licensure. It was the fact that, having been clearly explained

the necessity for accurately answering the question on the

application form, and having been clearly afforded an opportunity

to explain a “Yes” answer, Respondent chose to falsely answer the

question and thereafter sign an affidavit that his answers were

correct.

13. Chapter 61J2-2.027(2), Florida Administrative Code,

specifically states the significance of the application for

licensure. It is to make immediately possible an

... 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.

14. Respondent’s misrepresentation interferes with the

Division’s ability to make that important determination and

creates a serious question as to whether he is sufficiently

honest, trustworthy, and of good character, as to not constitute

a threat to the public. Taken alone, such misconduct would

clearly support denial or revocation of a salesperson’s license,

as Petitioner suggests. However, the misconduct of

misrepresentation took place more than two years ago, and the

underlying misconduct took place many years before that. In the

interim and since licensing, Respondent has apparently performed

in a creditable manner and earned the trust of his broker who

speaks highly of him. The Petitioner, in seeking revocation,

indicates Respondent should have the right to reinstate his

license after two years. Under the circumstances, it would

appear more appropriate to place Respondent’s license on

probation for a period of two years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Florida Real Estate Commission

enter a Final Order finding Respondent guilty of obtaining his

license by misrepresentation, and placing his license on

probation, under such terms and conditions as are deemed

appropriate by the Commission, for a period of two years.

DONE AND ENTERED this 13th day of November, 1998, in

Tallahassee, Leon County, Florida.

_

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of November, 1998.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Suite N-308

Post Office Box 1900

Orlando, Florida 32802-1900

Thomas S. Hudson, Esquire

1800 Second Street

Suite 960

Sarasota, Florida 34236

Lynda L. Goodgame

General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Henry M. Solares, Division Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite N-308

Post Office Box 1900

Orlando, Florida 32802-1900

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.