98-005315 Division Of Real Estate vs. Evers Aurubin Status: Closed Recommended Order on Friday, April 23, 1999.

Summary: Proof failed to support conclusion that licensee`s failure to disclose conviction on application was fraudulent and therefore failed to support the imposition of a penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-5315

)

EVERS AURUBIN, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

February 16, 1999, by video teleconference, with sites in

Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Geoffrey Kirk, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Evers Aurubin, pro se

13540 Northwest 17th Avenue

Opa Locka, Florida 33054

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 his real estate salesperson license "by

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

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

his real estate license application the information required

under Rule 61J2-2.027(2), Florida Administrative Code." The

gravamen of the charges was Petitioner's contention that

Respondent failed to disclose on his application that "on or

about February 22, 1991, . . . [he] was convicted of 'obstructing

street' (a misdemeanor)."

Respondent filed an election of rights which disputed the

factual allegations contained in the Administrative Complaint,

and 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 4 were received into evidence.

Respondent testified on his own behalf, but offered no additional

proof.

The transcript of hearing was filed March 31, 1999, and the

parties were accorded 10 days from that date to file proposed

recommended orders. Neither party elected to file such a

proposal.

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, Evers Aurubin, is a licensed real estate

salesperson in the State of Florida, having been issued license

number 0650984.

3. On February 24, 1997, Respondent filed an application

(dated February 12, 1997) 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 June 9, 1997, Respondent passed the salesperson

examination and he was issued license number 0650984 as an

inactive salesperson. From July 17, 1997, through the date of

the hearing, Respondent has been an active salesperson associated

with The Keyes Company, a broker corporation located at One

Southeast Third Avenue, Miami, Florida.

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

licensure as a real estate salesperson, the Department discovered

that Respondent had been involved in an incident that was not

revealed on his application. According to the Certified Record

Search (Petitioner's Exhibit 1), attested to by the Clerk of

Courts, Dade County, Florida, their records revealed that

Respondent was arrested on February 21, 1991, for "obstructing

street," convicted on February 22, 1991, and sentenced to and

credited with time served (overnight detention). No further

record existed concerning the nature of the charge since,

according to the clerk's certification "pursuant to Florida Rules

of Criminal Procedure 2.075, Retention of Court Records, the

requirement for retaining misdemeanor cases under this rule is

5 years, therefore the file is unavailable." Consequently, there

is no record evidence of the specific provision of law Respondent

was convicted of violating and, therefore, no showing that the

offense was criminal and, if so, the degree of felony or

misdemeanor.

7. Upon discovery of such information, the Department

apparently apprised Respondent of its discovery and requested an

explanation. Respondent addressed the Department's concerns by

letter of July 16, 1998, as follows:

I,m writting (sic) this letter to explain

the incident of my arrest and the reason I

answer not to the question on my application

for the real estate license. There in the

Amocco (sic) Gas Station on 27th Avenue close

to 135th St., I gas-up there a few time. On

the night of 2-21-91 in my way home from

work, I stop to gas-up while doing so I

noticed a young lady at the stop sign, but

previously I thought that I saw her inside

the gas station. By curiosity I drove by to

talk to her, I asked her how are you doing

just to have a conversation with her. She

approached and ask me do I have $20.00 I said

I have $9.00 to my surprise she said can she

go with me I laugh then she walk toward the

back of the car. All the doors of the car

were locked so I did not have any intention

of letting her in. I put my head down to

look for the stack (sic) shift because my car

was not automatic so I can put it on first

gear to go, when I raised my head I saw an

unmarked car pull in front of me vertically

at the same time two to three Police car

pull-up behind me, they ordered me out and

arrested me, they took me to the Police

Station to take me to jail that,s there (sic)

I find out she was an under cover cop or

working for the Police. I ask one of the

officer when will I get out he answer

probably the next morning because this is a

minor offense. In the morning they took me

to the court house the officer there told us,

those of us that are there for the first time

it is better to plead guilty, if we plead no

contest or any other way we will have to come

back to the court spend more time since this

is a very minor case, plead guilty and we

will be out the same day. I was working did

not have time to come back, so when the Judge

called me and asked me how do I plea I said

guilty then they let me out the next (sic)

morning.

The cause of the arrest remain unclear to

me. Because I find out that they arrested me

for mentioning money, but I did not enter to

any agreement what so ever with the lady and

I did not mention anything about sex.

Since it was a very minor case practically

nothing I never pay any attention to it,

that,s why I answer no to the question on the

applycation (sic). I regret the incident

very deeply and I will not let it happen to

me ever again.

8. Thereafter, on October 21, 1998, the Department filed

the Administrative Complaint at issue in this proceeding which,

based on Respondent's failure to disclose the aforesaid incident

on his 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 in his real estate

license application the information required under Rule 61J2-

2.027(2), Fla. Admin. Code, and therefore, 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:

. . . [T]he 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. . . .

9. Consistent with the explanation he offered the

Department in his letter of July 16, 1998, Respondent explained,

at hearing, that his response to item 9 on the application was,

at the time, an accurate reflection of his understanding of the

significance of the charge. According to Respondent, who was not

represented in the matter, it was his understanding that the

charge ("obstructing street") was a non-criminal matter; that he

was unfamiliar with the process, as well as scared; that he pled

guilty to the charge so he would not have to return; and

thereafter was released with credit for time served (an evening

of incarceration). There was no other penalty imposed for the

incident (no fine or probation), and Respondent has never been

charged with any other offense.

10. Here, Respondent's explanation for his failure to

disclose the information regarding his arrest and conviction is

credited, and it is resolved that, at the time he submitted his

application, Respondent did not intend to mislead or deceive

those who would be reviewing his application. In so concluding,

it is observed that Respondent's testimony was candid, the nature

of the incident was not shown to be significant, and Respondent's

understanding of the matter as non-criminal was, given the nature

of the charge and Respondent's lack of experience with the

judicial system, reasonable. Moreover, as heretofore noted, the

court record fails to disclose, and the Department offered no

proof to demonstrate, the provision of law violated or its

significance. 2

CONCLUSIONS OF LAW

11. 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).

12. 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).

13. 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.

14. 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. . . .

15. 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. 3

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 prohib iting 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))"; and

Naekel v. Department of Transportation , 782 F.2d 975, 978 (Fed.

Cir. 1986) ("[A] charge of falsification of a government document

[in this case, an employment application] requires proof not only

that an answer is wrong, but also that the wrong answer was given

with intent to deceive or mislead the agency. The fact of an

incorrect response cannot control the question of intent. Were a

bare inaccuracy controlling on the question of intent, the

'intent' element of the charge would be subsumed within the

distinct inquiry of whether the employee's answer adheres to the

true state of facts. A system of real people, pragmatic in their

expectations, would not easily tolerate a rule under which the

slightest deviation from truth would sever one's tenuous link to

employment. Indeed, an SF-171 does not require absolute

accuracy. Instead an employee must certify that the answers are

'true, complete and correct to the best of my knowledge and

belief, and are made in good faith.' No more than that can

reasonably be required. The oath does not ask for certainty and

does not preclude a change in one's belief.")

16. Here, given the Department's failure to demonstrate the

provision of law violated or its significance, it cannot be said

that Respondent's answer to the inquiry made in item 9 of the

application was inaccurate. Moreover, the evidence adduced at

hearing (specifically the unrebutted testimony of Respondent on

the subject, which the undersigned has credited) establishes

that, in responding to the question in the manner he did,

Respondent did not intend to deceive or defraud anyone about his

past, but rather responded in a manner he believed, in good

faith, was appropriate. Finally, given the nature of the offense

and the time that elapsed since its occurrence, it is unlikely

(there being no proof to the contrary) that the Department's

decision (to approve Respondent's application for licensure)

would have been altered, had it known of Respondent's conviction.

Consequently, the charge that Respondent "obtained [his] license

by means of fraud, misrepresentation, or concealment in violation

of Section 475.25(1)(m), Florida Statutes," as alleged in Count I

of the Administrative Complaint, must be dismissed. Similarly,

there being no competent proof to demonstrate with any degree of

certainty that the offense with which Respondent was convicted

was criminal in nature, the Department has failed to demonstrate

that Respondent violated the provisions of Rule 61J2-2.027(2),

Florida Administrative Code, and, therefore, Subsection

475.25(1)(e), Florida Statutes. Consequently, Count II of the

Administrative Complaint must also be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be rendered dismissing the

Administrative Complaint.

DONE AND ENTERED this 23rd day of April, 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 23rd day of April, 1999.

ENDNOTES

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.

2/ Research discloses a number of possible statutes that would

support a charge of "obstructing street." For example, the

provisions of law at Sections 316.2035, 316.2045, 861.01, and

861.011, Florida Statutes (1989); however, those provisions do not

appear to encompass the circumstances of the incident in question.

Other possible provisions of law, include Sections 316.194 and

316.1945, Florida Statutes (1989), as well as unknown municipal or

county ordinances, relating to improper parking. Here, to resolve

the nature or significance of the infraction lodged against

Respondent, whether criminal or non-criminal, would be pure

speculation.

3/ Subsection (2) of Section 475.25, Florida Statutes (a

statutory provision not cited by the Department in the

Administrative Complaint issued in the instant case), provides

that a licensed real estate salesperson's "license may be revoked

or cancelled if it was issued through the mistake or inadvertence

of the commission." This subsection, in contrast to Subsection

(1)(m) of Section 475.25, Florida Statutes (the subsection upon

which the Department is relying in seeking the revocation of

Respondent's license), authorizes the Commission to revoke a

license that was issued based upon erroneous information provided

by the licensee concerning the licensee's qualification,

regardless of whether the licensee, in providing such information,

had the intent to deceive.

COPIES FURNISHED:

Geoffrey Kirk, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

Evers Aurubin

13540 Northwest 17th Avenue

Opa Locka, Florida 33054

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.