98-005065 Division Of Real Estate vs. Barbara Lynn Clarke Status: Closed Recommended Order on Wednesday, March 31, 1999.

Summary: Applicant for real estate sales and broker licenses, who failed to disclose worthless check and driving offenses, did not obtain license by fraud in violation of Section 475.25(1)(m), Florida Statutes. No penalty was imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

0F REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-5065

)

BARBARA LYNN CLARKE, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

An administrative hearing was conducted on

February 25, 1999, in Jacksonville, Florida, by Daniel Manry,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Geoffrey Kirk, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Florida 32801-1900

For Respondent: Barbara Lynn Clarke

7622 Praver Court

Jacksonville, Florida 32217

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Section 475.25(1)(m), Florida Statutes (1997), by obtaining a

license by fraud, misrepresentation, or concealment; violated

Florida Administrative Code Rule 61J2-2.027(2), by failing to

disclose material information in her application; and, if so,

what, if any, penalty is appropriate. (All Chapter and Section

references are to Florida Statutes (1997) unless otherwise

stated. All references to rules are to rules adopted in the

Florida Administrative Code in effect on the date of this Order.)

PRELIMINARY STATEMENT

On October 21, 1998, Petitioner filed an administrative

complaint against Respondent alleging that Respondent violated

Section 475.25(1)(m) and Rule 61J2-2.027(2). Respondent timely

requested an administrative hearing.

At the hearing, Petitioner called one witness and submitted

three exhibits for admission in evidence. Respondent testified

in her own behalf, and submitted one exhibit for admission in

evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are set forth in the Transcript of the hearing

filed on March 9, 1999. Petitioner filed its Proposed

Recommended Order ("PRO") on March 25, 1999. Respondent did not

file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for the

regulation and discipline of real estate licensees in the state.

Respondent is licensed in the state as a real estate broker

pursuant to license number 0421942. The last license issued to

Respondent was as a broker t/a Action First Realty, 7622 Praver

Court, Jacksonville, Florida 32217.

2. On January 9, 1984, Respondent applied for a license as a

real estate salesperson. On February 11, 1993, Respondent

applied for a license as a real estate broker. On each

application, Respondent signed a sworn affidavit that all of her

answers were true and correct and:

. . . are as complete as his/her

knowledge, information and records

permit, without any evasions or mental

reservations whatsoever. . . .

3. In relevant part, question six on the sales license

asked Respondent whether she had ever been arrested or charged

with the commission of an offense against the laws of any

municipality or state without regard to whether she was

convicted. Question nine on the broker application asked

Respondent whether she 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 both

questions. In each case, Petitioner relied on the accuracy of

the application and issued a license to Respondent.

4. On November 7, 1978, Respondent was adjudicated guilty

of cashing a worthless check in the amount of $5.00. Respondent

wrote the check to Carvel Ice Cream for a birthday cake for her

daughter's birthday.

5. Respondent was in the process of moving, and the notice

of insufficient funds was not delivered to her. Respondent went

to court and paid the $5.00 check and the court costs. The judge

characterized the charge as frivolous and was perturbed that the

charge consumed time in his court.

6. On October 30, 1980, adjudication was withheld on the

charge of driving with a suspended license. Respondent attended

driving school. The offense does not appear on Respondent's

Florida driving record for her entire driving history.

7. Respondent did not willfully misstate a material fact on

either application. Respondent testified under oath that she did

not consider either offense to be a crime and did not try to lie

about either offense. Her testimony was credible and persuasive.

8. Respondent answered "no" to questions six and nine on

her applications in the good-faith belief that the offenses were

immaterial and not the type of offenses addressed in either

question. When Petitioner's investigator interviewed Respondent,

Respondent answered all questions fully and truthfully and

cooperated in the investigation.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the subject matter and parties in this proceeding. The

parties were duly noticed for the administrative hearing.

10. The burden of proof is on Petitioner. Petitioner must

show by clear and convincing evidence that Respondent committed

the acts alleged in the administrative complaint and the

reasonableness of any proposed penalty. Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987).

11. Section 475.25(1) provides in relevant part that the

Florida Real Estate Commission (the "Commission") can place

Respondent on probation, suspend Respondent's license, revoke

Respondent's license, or impose a fine of $1,000 if the

Commission finds that Respondent obtained a license by fraud,

misrepresentation, or concealment within the meaning of Section

475.25(1)(m).

12. Disciplinary statutes such as Section 475.25(1)(m) are

penal in nature and must be strictly interpreted against the

authorization of discipline and in favor of the person sought to

be penalized. Munch v. Department of Business and Professional

Regulation , 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); Fleischman

v. Department of Business and Professional Regulation , 441 So. 2d

1121, 1133 (Fla. 3rd DCA 1983.) A statute imposing a penalty is

never to be construed in a manner that expands the statute.

Hotel and Restaurant Commission v. Sunny Seas No. One , 104 So. 2d

570, 571 (Fla. 1958.)

13. Florida courts have uniformly held that the appropriate

culpability standard for those portions of Section 475.25(1)

prohibiting conduct "by means of fraud, misrepresentation or

concealment" is that the licensee engaged in an intentional act

of misconduct. Walker v. Florida Department of Business , 705 So.

2d 652, 654 (Fla. 5th DCA 1998); Munch v. Department of

Professional Regulation , supra , 592 So. 2d at 1143-1144; Morris

v. Department of Professional Regulation , 474 So. 2d 841, 843

(Fla. 5th DCA 1985.) Intent is a state of mind. It is not

subject to direct proof but must be inferred from the

circumstances. Skold v. State , 263 So. 2d 627 (Fla. 3d DCA

1972).

14. The evidence submitted by Petitioner showed that

Respondent submitted a false application. However, Petitioner

did not charge Respondent with submitting a "false" application,

as that term is used in Section 475.25(1)(l).

15. The evidence submitted by Petitioner provides a basis

for drawing an inference that Respondent possessed the culpable

intent required as an essential element of the charge against

Respondent. However, such an inference is a rebuttable

inference.

16. If a false application were determined to be synonymous

with culpable intent, it would have the effect of transforming

the inference drawn from a false application into an irrefutable

inference. Similarly, if the testimony of the applicant and the

applicant's witnesses could never overcome the inference drawn

from documentary evidence, the inference would have the effect of

an irrefutable inference.

17. Respondent's failure to correctly answer questions six

and nine on her applications was the result of miscomprehension

rather than dishonesty. At worst, Respondent was careless when

she answered "no" to each question.

18. The evidence is less than clear and convincing that

Respondent had a specific intent to commit fraud,

misrepresentation, or concealment. Respondent's testimony was

credible and persuasive.

19. Respondent violated Rule 61J2-2.027(2). Respondent

failed to disclose in her applications information required by

the rule.

20. Respondent demonstrated mitigating circumstances within

the meaning of Rule 61J2-24.001(4). Respondent did not intend to

mislead Petitioner. The harm to Petitioner and the public is de

minimis . Respondent made restitution for the worthless check.

She has no previous disciplinary history and has never sought to

avoid accountability for the two past offenses or the charge in

this proceeding. Petitioner failed to demonstrate any

aggravating circumstances.

21. Petitioner seeks a penalty "in accordance with Rule

61J2-24.001(3)." Petitioner's PRO at 8. The disciplinary

guidelines prescribed in Rule 61J2-24.001 are expressly limited,

by the terms of Rule 61J2-24.001(1), to violations of "Chapters

455 or 475."

22. Petitioner fai led to show by clear and convincing

evidence that Respondent violated Section 475.25(1)(m). Rule

61J2-24.001(3)(n) prescribes a penalty only for violations of

Section 475.25(1)(m).

23. Rule 61J2-24.001 prescribes no discipline for

Respondent's violation of Rule 61J2-2.027(2). Rule 61J2-2.027(2)

does not relate to Section 475.25(1)(m). The specific authority

for Rule 61J2-2.027 is Section 475.05. The laws implemented by

the rule are Sections 475.17, 475.175, and 475.451. The

administrative complaint does not charge Respondent with

violations of Sections 475.17, 475.175, or 475.451.

24. Respondent is not guilty of violating Section

475.25(1)(m), within the meaning of Rule 61J2-24.001(3)(n). Rule

61J2-24.001(3) prescribes no penalty for Respondent's violation

of Rule 61J-2.027(2).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Commission enter a Final Order finding

Respondent not guilty of violating Section 475.25(1)(m), finding

Respondent guilty of violating Rule 61J2-2.027(2), and imposing

no penalty.

DONE AND ENTERED this 31st day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

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]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of March, 1999.

COPIES FURNISHED:

Geoffrey Kirk, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Florida 32801-1900

Barbara Lynn Clarke

7622 Praver Court

Jacksonville, Florida 32217

James Kimbler, Acting Division Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

William Woodyard, Acting 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.