98-002874 Division Of Real Estate vs. Carol S. Dove Status: Closed Recommended Order on Monday, January 4, 1999.

Summary: Respondent failed to disclose conviction for driving under the influence on license application. Her explanation was insufficient, and therefore, she was found guilty of concealment. Mitigation was shown.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-2874

)

CAROL S. DOVE, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative

Hearings, before Daniel M. Kilbride, Administrative Law Judge, in

Orlando, Florida, on November 17, 1998. The following

appearances were entered:

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Senior Attorney

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Florida 32801-1772

For Respondent: William J . Sheaffer, Esquire

609 East Central Boulevard

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Respondent is guilty of obtaining a license by means

of fraud, misrepresentation or concealment, in violation of

Section 475.25(1)(m), Florida Statutes (1997).

PRELIMINARY STATEMENT

By Administrative Complaint filed October 24, 1997,

Petitioner, Department of Business and Professional Regulation,

Division of Real Estate ("Petitioner"), alleged that Carol S.

Dove (Respondent) violated the aforementioned statute in that

Respondent failed to disclose her plea of guilty in a criminal

matter on her real estate salesperson's licensure application.

Respondent disputed the allegations of fact and requested a

formal hearing.

This matter was referred to the Division of Administrative

Hearings and a formal hearing was scheduled. Notice was sent to

the parties at the address provided. A formal hearing was held

on November 17, 1998, by video teleconference. After the hearing

was convened, Petitioner called one witness. Petitioner's

Exhibits 1 through 3 were received into evidence. Respondent

testified in her own behalf. No additional evidence was offered.

The hearing was recorded and the transcript was filed on

December 17, 1998. Petitioner filed its Proposed Recommended

Order on December 24, 1998. Respondent filed her proposals on

December 21, 1998. Both proposals have been given careful

consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency

charged with the responsibility and duty to prosecute

Administrative Complaints pursuant to the laws of the State of

Florida.

2. Respondent is and was at all times material to this

proceeding a licensed Florida real estate salesperson. She was

issued Licensed No. 0627131 in accordance with Chapter 475,

Florida Statutes. Her license is currently active.

3. On or about May 9, 1995, Respondent submitted an

application for licensure as a real estate salesperson.

4. Question number 9 on the application read as follows:

Have you ever been convicted of a crime,

found guilty, or entered a plea of guilty or

nolo contendere (no contest), even if

adjudication was withheld? This question

applies to 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 any

other state, you are responsible for

verifying the expungement or sealing prior to

answering "NO."

If you answered "Yes," attach details

including dates and outcome, including

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 understand the question, consult with an

attorney or the Division of Real Estate.

5. Respondent marked the "NO" box beside question

number 9. Respondent then signed the "Affidavit of Applicant"

which read above her signature:

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

applying, that (s)(he) has carefully read the

application, answers, and the attached

statements, if any, and that all such answers

and statements are true and correct, and are

as complete as his/her knowledge, information

and recollection 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.

6. The purpose of Question 9 is to assist the Division of

Real Estate in assessing the applicant's propensity for honesty,

trustworthiness, and good morals.

7. Petitioner relied on the information and answers

contained in Respondent's application in deciding to issue her a

real estate salesperson's license.

8. On July 10, 1995, Respondent passed the real estate

salesperson examination and was issued License No. 0627131.

9. From July 10, 1995, through the present, Respondent was

an active salesperson in association with various brokers in the

Central Florida area. Respondent is presently an active

salesperson in association with Summer Bay Partnership, an

owner/developer trading as Summer Bay Resort, located at 17805

U.S. Highway 192, Clermont, Florida 34711.

10. On May 21, 1993, in Kissimmee, Osceola County, Florida,

Respondent pled guilty to and was adjudicated guilty of the

offense of driving while under the influence ( DUI) of alcoholic

beverage to the extent that her normal faculties were impaired,

Osceola County Case No. 93-006486.

11. Respondent was sentenced, inter alia , to a term of one

(1) year supervised probation, a suspension of driving privileges

for six (6) months, DUI counter-attack school, fines and court

costs.

12. Petitioner's investigation following the filing of the

application yielded that Respondent had either misrepresented or

erroneously answered question number 9 and, therefore, had gained

her Real Estate License by fraud, misrepresentation or

concealment.

13. Respondent testified that she checked "NO" to question

number 9 stating that she had never been convicted of a crime as

she was advised by her attorney in 1993 that DUI was a traffic

violation, not a criminal offense. Further Respondent testified

that when she thought of a crime, she thought of murder, rape and

robbery, not a traffic violation.

14. Respondent testified that she did not intentiona lly

lie, misrepresent or conceal her past conviction for DUI in order

to gain a Real Estate License.

15. Respondent submitted finger print exemplars with her

application, aware that there would be a background check done.

16. Respondent stated that she only became aware of the

fact that a DUI was a crime when she received notification from

the Respondent.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

18. The parties were duly noticed pursuant to the notice

provisions of Chapter 120, Florida Statutes.

19. The Petitioner's authority to prosecute Administrative

Complaints is derived from Chapter 475, Florida Statutes.

20. Revocation of license proceedings are penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281

So. 2d 487 (Fla. 1973). The Petitioner bears the burden of

proving, by clear and convincing evidence, that acts alleged in

the Administrative Complaint occurred. Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987), Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996).

21. Petitioner satisfied its burden of proof. Petitioner

demonstrated that Respondent violated Section 475.25(1)(m),

Florida Statutes, by obtaining her license through fraud,

misrepresentation or concealment.

22. Respondent admitted that she had pled guilty to the

charge of "DUI" as alleged in the Administrative Complaint.

Respondent's admissions are sufficient to prove the facts

alleged.

23. It is clear from the record that Respondent had actual

or constructive knowledge that she was making a material

misstatement when she answered "NO" to question number 9 on the

application. This constituted misrepresentation and concealment

on her part. Misrepresentation is ". . . conduct which amounts

to an assertion not in accordance with the truth." Nagashima v.

Busch , 541 So. 2d 783 (Fla. 4th DCA 1989), citing Comment (b) to

Section 525, Restatement (Second) of Torts . Misrepresentation

naturally includes the element of intent. Walker v. Department

of Business and Professional Regulation , 705 So. 2d at 652 (Fla.

5th DCA 1998). Wrongful intent "can be established by a showing

of actual knowledge," or by a showing that one "was reckless or

careless as to the truth of the matter asserted." Ocean Bank of

Miami v. Inv-Uni Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d DCA),

rev. den. 606 So. 2d 1165 (Fla. 1992).

24. Rule 61J2-2.027(2), Florida Administrative Code,

describes the significance of the licensure application. It says

that "[t]he 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." By answering "NO"

to question number 9 in the application, Respondent made this

difficult and obtained a license without giving the Department of

Business and Professional Regulation the opportunity to evaluate

her for fitness to deal with the public in an honest manner.

25. Petitioner's proof is clear and convincing, and

sufficient to justify the imposition of a penalty within the

range of those provided for in the above-cited statutory

authority.

26. Section 475.25(1), Florida Statutes, allows for

revocation of a license when the licensee has obtained the

license by means of fraud, misrepresentation, or concealment.

27 . At the hearing, Respondent testified her failure to

include her DUI conviction in the answer sheet was a mistake,

based upon misinformation given to her by an attorney

representing her on the DUI charge in 1993. In addition, she

stated that she did not view DUI as a crime.

28. However, Respondent's explanation regarding her error

on her real estate license application, even if true, is not

sufficient. Question number 9 on the applicant clearly states

that "[t]his Question applies to violation of the laws . . .

including traffic offenses. . ." It also instructs the applicant

to consult with an attorney or the Petitioner if she

misunderstood the question. Respondent's conduct demonstrated

that she was reckless or careless as to the truth of the answer

given and is, therefore, guilty of misrepresentation or

concealment.

29. Respondent's explanation and her conduct since the

issuance of her license in 1995 is sufficient to show mitigation

in this case and that a penalty other than revocation should be

imposed.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that Respondent be found guilty of violating

Section 475.25(1)(m), Florida Statutes, as charged in the

Administrative Complaint, and that Respondent's license should

not be revoked but that a lesser discipline be imposed within the

range set forth in Rule 61J2-24.001(3), Florida Administrative

Code.

DONE AND ENTERED this 4th day of January, 1999, in

Tallahassee, Leon County, Florida.

_________ __________________________

DANIEL M. KILBRIDE

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 4th day of January, 1999.

COPIES FURNISHED:

Geoffrey T. Kirk, Senior Attorney

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Florida 32801-1772

William J. Sheaffer, Esquire

609 East Central Boulevard

Orlando, Florida 32801

James Kimbler, Acting Division Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame, 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.