98-005314 Division Of Real Estate vs. Karen Akinbiyi Status: Closed Recommended Order on Friday, May 21, 1999.

Summary: Agent`s license was revoked for having failed to disclose criminal record on application for licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-5314

)

KAREN AKINBIYI, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge, William J. Kendrick, held a formal

hearing in the above-styled case on March 31, 1999, by video

teleconference, with sites in Tallahassee and Fort Lauderdale,

Florida.

APPEARANCES

For Petitioner: Ghunise Coaxum, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Tara G. Intriago, Esquire

400 Southeast Eighth Street

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUES

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 October 21, 1998, Petitioner issued a two-count

Administrative Complaint whereby it alleged that Respondent

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

Statutes, by obtaining her real estate salesperson license "by

means of fraud, misrepresentation, or concealment," and Section

475.25(1)(e), Florida Statutes, by having "failed to disclose

arrest or conviction of a crime [in her real estate license

application]," as required by Rule 61J2-2.027(2), Florida

Administrative Code. The gravamen of the charges was

Petitioner's contention that Respondent failed to disclose on her

application that "[o]n or about September 6, 1990, Petitioner

pled nolo contendere to unlawful sale or possession of cannabis,

a felony, in the Circuit Court, in and for Dade County, Florida,

. . . [and that for such offense adjudication of guilt was

witheld]."

Respondent filed an election of rights which disputed the

factual allegations contained in the Administrative Complaint,

and averred that "My attorney which was paid [$]300.00 told me he

was expunging it off my record. I had no idea it was still there

until being notified by DBPR." Petitioner referred the matter to

the Division of Administrative Hearings for the assignment of an

administrative law judge to conduct a formal hearing pursuant to

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called no witnesses; however,

Petitioner's Exhibits 1 through 3 were received into evidence.

Respondent testified on her own behalf, but offered no additional

proof.

The transcript of hearing was filed April 19, 1999, and the

parties were initially accorded 10 days from that date to file

proposed recommended orders; however, at the parties' request the

time for filing was extended until May 21, 1999. The parties

elected to file such proposals and they have been duly-

considered.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional

Regulation, Division of Real Estate (Department), is a state

government licensing and regulatory agency charged, inter alia ,

with the responsibility and duty to prosecute administrative

complaints pursuant to the laws of the State of Florida,

including Chapters 455 and 475, Florida Statutes.

2. Respondent, Karen Akinbiyi, is a licensed real estate

salesperson in the State of Florida, having been issued license

number SL-0642172.

3. On June 14, 1996, Respondent filed an application (dated

May 1996) with the Department for licensure as a real estate

salesperson. Pertinent to this case, item 9 on the application

required that Respondent answer "Yes" or "No" 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

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.

Respondent responded to the question by checking the box marked

"No."

4. The application concluded with an "Affidavit of

Applicant," which was acknowledged before a Notary Public of the

State of Florida, as follows:

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 such answers

and 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. (Emphasis added.)

5. On September 30, 1996, Respondent passed the salesperson

examination and she was issued license number SL-0642172 as an

inactive salesperson. From December 30, 1996, through June 4,

1997, Respondent was an active salesperson associated with Home

Realty Corporation, a broker corporation trading as ERA Homeland

Realty and located at 6051 Miramar Parkway, Miramar, Florida.

From June 5, 1997, through the date of hearing, Respondent was

"not . . . in compliance to operate in an active status due to no

employing broker." (Petitioner's Exhibit 1.)

6. Following approval of Respondent's application, and her

licensure as a real estate salesperson, the Department discovered

that Respondent had been involved in a criminal incident that was

not revealed on her application. According to the proof

(Petitioner's Exhibit 3), Respondent was arrested on August 16,

1990, and charged, inter alia , with the purchase of marijuana

(cannabis), under 10 grams, in violation of Section

893.13(2)(a)2, Florida Statutes, a felony of the third degree.

On August 28, 1990, an Information was filed, predicated on such

offense, and on September 6, 1990, Respondent entered a plea of

nolo contendere . By order of the same date, the court noted that

Respondent had been found guilty of the charge, but withheld

adjudication of guilt. Respondent was sentenced to (accorded

credit for) time served (one day), ordered to pay various costs

totaling $225.00, and fingerprinted pursuant to Section

921.241(1), Florida Statutes.

7. Based on such incident, the Department filed the

Administrative Complaint at issue in this proceeding which, based

on Respondent's failure to disclose the criminal incident on her

application, charged that "Respondent has obtained a license by

means of fraud, misrepresentation, or concealment in violation of

[Section] 475.25(1)(m), Fla. Stat." (Count I), and that

"Respondent has failed to disclose arrest or conviction of a

crime as required by . . . [Rule 61J2-2.027(2), Florida

Administrative Code] and, therefore, is in violation of [Section]

475.25(1)(e), Fla. Stat." (Count II). According to the

complaint, the disciplinary action sought for such violations was

stated to be as follows:

. . . The penalty for each count or

separate offense may range from a reprimand;

an administrative fine not to exceed

$5,000.00 per violation; probation;

suspension of license, registration or permit

for a period not to exceed ten (10) years;

revocation of the license, registration or

permit; and any one or all of the above 1

penalties. . . .

8. At hearing, Respondent offered the following explanation

regarding the criminal incident and her failure to disclose it on

her application for licensure:

DIRECT EXAMINATION

* * *

Q. . . . Ms. Akinbiyi, do you recall being

arrested for unlawful purchase of cannabis?

A. Yes, I do.

* * *

Q. And what happened after the arrest?

A. After the arrest I was let go. I went

to the phone book, looked up an attorney,

talked to him over the phone, briefly told

him what it is I wanted him to do. He told

me to come to his office. I went to his

office. He told me what he was going to do.

He told me that he needed $300 to do it. I

gave it to him. He gave me a receipt. He

gave me a rubber stamp on the receipt, and I

left.

Q. Okay, and when he said he was going to

take care of it, what did you believe that to

mean?

A. Well, I believed it to mean that it had

been dismissed, and he was going to just

erase it off my record, period, expunge it,

take it away.

Q. Okay, after that day did you have any

more contact with this attorney?

A. No, I didn't have any need to, because

I paid him to do a job I thought he did.

Q. Okay, when was the first time that this

arrest was brought up again?

A. When I got the letter from the Real

Estate Commission, telling me that they see

that I've been arrested, and I didn't answer

properly to the application. . . .

* * *

Q. . . . when you answered the question on

the application did you believe that you had

been -- did you know what a withhold of

adjudication was at the time?

A. At the time, no. I just knew that I

paid this lawyer, and everything was supposed

to be okay.

Q. Okay, at the time that you answered the

question did you believe your criminal charge

had been dismissed?

A. Yes, I did.

Q. . . . at any time when you were

responding to the question regarding, have

you ever been convicted or pled no contest to

a crime, were you intending to conceal or

misrepresent this crime?

A. No, I was not.

* * *

CROSS EXAMINATION

* * *

Q. Ms. Akinbiyi --

A. Uh-huh (positive response.)

Q. -- you testified that when you were

filling out the application for your real

estate license that you believed that your

record have been sealed or expunged by your

attorney, correct?

A. Exactly.

Q. Do you recall reading the last

paragraph to Question Number 9, which reads,

"if you intend to answer no because those

records have been expunged or sealed by the

Court, you are responsible for verifying

expungement or sealing prior to answering

no"?

A. Well, it wasn't a problem, because I

knew where the attorney's office was, and if

I needed him I could just go back there and

say, remember me, I paid you. This is my

case number, and he can go ahead and look it

up.

Q. So did you ever actually verify that

your records were sealed or expunged before

answering that?

A. No, I did not. No, I did not, but I

just assumed it was since I paid him.

Q. At the time that you were filling out

this application you did have a recollection

of this criminal charge?

A. Yes, I did.

* * *

THE COURT: Let me ask you a question. You

were in jail for one evening; is that

correct?

THE WITNESS: That's correct.

THE COURT: Okay, and when you were

released the next morning is when you called

the lawyer?

THE WITNESS: Yes, it is.

THE COURT: And you went to see him the

same day?

THE WITNESS: Yes, I did.

THE COURT: And at that time you paid him

$300, and he gave you a receipt for the

money?

THE WITNESS: Yes, he did, that's correct.

* * *

THE COURT: Did you ever see the lawyer

again after that date?

THE WITNESS: No, I didn't.

THE COURT: Did you ever appear in Court?

THE WITNESS: No.

THE COURT: Did you ever have any contact

with the criminal justice system after your

release from jail on this charge?

THE WITNESS: No, sir.

* * *

[RE-CROSS EXAMINATION]

Q. Do you remember going to court and

entering a plea of no contest to this

charge. . .

A. I really don't . . . After I went to

-- after I just spent the night, I believe

the next day we did go to court. I don't

know, because it was like a whole group of

us. Everybody, they just said their name,

and it wasn't like a one person deal. It was

everybody collectively standing up going to

court. So I could have. To be honest with

you, I can't remember.

Q. Do you remember talking to the judge?

A. I remember I was in a courtroom, and

then they said time served, and I said okay.

And I went home, I called my husband, looked

in the phone book, got an attorney and went

straight to his office.

Q. Do you remember being fingerprinted

when you were in court?

A. . . . not in court. When I got

arrested I got fingerprinted.

Q. Okay, but you weren't fingerprinted in

court again?

A. No, I wasn't.

Q. Okay. Just one more question. Do you

remember having to pay any costs to the Court

for this charge?

A. No. . . . I don't recall any charges

that I had to pay myself.

9. Having carefully considered Respondent's testimony at

hearing, and having reflected further on her explanation for

failing to disclose the criminal incident on her application

(that she employed an attorney to expunge or seal her record, and

she assumed he had done so when completing the application), it

must be resolved that Respondent's explanation was lacking in

sincerity or genuiness, as well as substance, and must be

rejected as unpersuasive. In so concluding, it is initially

observed that Respondent's version of her exposure to the

criminal justice system does not conform with the objective proof

of record. (Petitioner's Exhibit 3.) Notably, Respondent avers

that she employed an attorney to expunge or seal her record on

August 17, 1990 (the day she was released from jail, and the day

after her arrest), and that she had no further contact with her

lawyer or the criminal justice system after that date; however,

the objective proof demonstrates that the Information did not

issue until August 28, 1990, and that it was not until

September 6, 1990, that Respondent, accompanied by her attorney,

entered a plea of nolo contendere . The objective proof further

reflects that on the same date (September 6, 1990) the court

noted her guilty of the charge, but withheld adjudication of

guilt and sentenced her to time served, ordered her to pay

various costs totaling $225.00, and oversaw that she was

fingerprinted in open court. Clearly, Respondent's version of

the event does not comport with the objective proof, and it is

most unlikely that a person would confuse or forget an appearance

in court on a felony charge, the entry of a plea to a felony

charge, or being fingerprinted in open court. Moreover, it is

most unlikely that Respondent would engage an attorney the day

after her arrest, and before the Information had been filed or

resolved, to expunge or seal her record. Finally, had she made

such a request of her attorney at anytime, it is most improbable

that she would not contact or inquire further of her attorney to

ascertain whether her record had been successfully expunged or

sealed. In sum, Respondent's testimony that her response to item

9 on the application was, at the time, an accurate reflection of

her understanding of the status of the criminal incident (that

the record had been expunged or sealed) is improbable and

unworthy of belief. Consequently, it must be resolved that

Respondent's failure to disclose the incident was intentional.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of these

proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida

Statutes (1997).

11. Where, as here, the Department proposes to take

punitive action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence. Section

120.57(1)(h), Florida Statutes (1997), and Department of Banking

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

"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." Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983). Moreover, the disciplinary action taken may be

based only upon the offenses specifically alleged in the

administrative complaint. See 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 844 (Fla. 2d DCA 1984).

Finally, in determining whether Respondent violated the

provisions of Section 475.25(1), 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).

12. Pertinent to this case, Section 475.25(1), Florida

Statutes, provides that the Florida Real Estate Commission:

. . . may 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.

13. Pertinent to the perceived violation of Subsection

475.25(1)(e), Florida Statutes, Rule 61J2-2.027(2), Florida

Administrative Code, 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 arrested or convicted of a

crime, or if any criminal or civil proceeding

is pending against the applicant, or if any

judgment or decree has been rendered against

the applicant in a case wherein the pleadings

charged the applicant with fraudulent or

dishonest dealings. . . .

14. To establish that a licensee committed a violation of

Subsection 475.25(1)(m), as alleged in Count I of the

Administrative Complaint, the Department must show not only that

the licensee provided false or misleading information on his

application, but that he did so knowingly and intentionally.

Munch v. Department of Professional Regulation , 592 So. 2d 1136,

1143 (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."). Accord, Walker v.

Department of Business and Professional Regulation , 23 Fla. L.

Weekly D292 (Fla. 5th DCA 1998). See also 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))."

15. Here, as observed in the findings of fact, the

Department has demonstrated that the misleading, deceptive, and

untrue representation contained in Respondent's application was

made willfully (intentionally). See Ellis v. State , 425 So. 2d

201 (Fla. 5th DCA 1983), approved, 442 So. 2d 213 (Fla. 1983)

(circumstantial evidence is sufficient to prove intent). See

also Ocean Bank of Miami v. Inv-Uni Investment Corp. , 599 So. 2d

694, 697 (Fla. 3d DCA 1992)("Scienter, or guilty knowledge, is an

element of intentional misconduct, which can be established by

showing actual knowledge, or that the defendant was reckless or

careless as to the truth of the matter asserted"). Consequently,

it has been shown, as alleged in Count I of the Administrative

Complaint, that Respondent violated the provisions of Subsection

475.25(1)(m), Florida Statutes. Such conduct also supports the

conclusion that, as alleged in Count II of the Administrative

Complaint, Respondent violated the provisions of Subsection

475.25(1)(e), Florida Statutes, by failing to comply with the

disclosure requirements of Rule 61J2-2.027(2), Florida

Administrative Code.

16. Having reached the foregoing conclusion, it remains to

resolve the appropriate penalty for Respondent's offense. Here,

the Department suggests, as a penalty for the violation found,

that Respondent's license be revoked. That proposal is

consistent with Section 475.25(1), Florida Statutes, and the

Department's penalty guidelines (Rule 61J2-24.001(3)(n), Florida

Administrative Code). C.f. Williams v. Department of

Transportation , 531 So. 2d 994 (Fla. 1st DCA 1988) (Agency is

required to comply with its disciplinary guidelines in taking

disciplinary action against its employees.) Consequently, there

being no apparent reason to deviate from the Department's

recommendation, its proposed penalty is accepted as appropriate.

Walker v. Department of Business and Professional Regulation ,

supra (Penalty imposed was within Florida Real Estate

Commission's statutory authority and would not be disturbed.)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be rendered which finds

Respondent guilty of violating Subsections 475.25(1)(e) and (m),

Florida Statutes, as alleged in the Administrative Complaint.

It is further RECOMMENDED that for such violations, the

final order revoke Respondent's license.

DONE AND ENTERED this 21st day of May, 1999, in Tallahassee,

Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

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 21st day of May, 1999.

ENDNOTE

1/ The Department also sought an award of costs as provided for

by Section 455.227(3), Florida Statutes; however, it offered no

proof, at hearing, regarding what costs, if any, it incurred.

Consequently, there is no record basis on which to make a

recommendation concerning any cost award.

COPIES FURNISHED:

Ghunise Coaxum, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

Tara G. Intriago, Esquire

400 Southeast Eighth Street

Fort Lauderdale, Florida 33316

Herbert S. Fecker, Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

William Woodyard, 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.