98-005408 Regulatory Council Of Community Association Managers vs. Hasnain Mehdi Hanif Status: Closed Recommended Order on Wednesday, April 21, 1999.

Summary: Licensee`s failure to disclose felony conviction was intentional and warranted revocation of licensure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

COMMUNITY ASSOCIATION OF MANAGERS, )

)

Petitioner, )

)

vs. ) Case No. 98-5408

)

HASNAIN MEHDI HANIF, )

)

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

March 18, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue, Suite N-607

Miami, Florida 33128

For Respondent: Hasnain Mehdi Hanif, pro se

420 Northeast 76th Street, Apartment 7

Miami, Florida 33138

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Amended Administrative Complaint

and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a three-count Administrative Complaint dated October 26,

1998, Petitioner charged that Respondent, a licensed community

association manager, violated the provisions of Sections

455.227(1)(h), and 468.436(1)(b)4, Florida Statutes, and

Rule 61-20.001(4)(d), Florida Administrative Code. Respondent

filed an Election of Rights which disputed the factual

allegations contained in the Administrative Complaint and

requested a formal hearing. Consequently, Petitioner forwarded

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.

By motion filed February 26, 1999, Petitioner requested, and

by order of March 9, 1999, Petitioner was accorded, leave to file

an Amended Administrative Complaint. That complaint, filed

February 26, 1999, contained four counts, and charged that

Respondent violated the provisions of Sections 455.227(1)(h) and

468.436(1)(b)2, 3, and 4, Florida Statutes, and Rule 61-

20.001(4)(d), Florida Administrative Code. The gravamen of those

charges was premised on the contention that when he applied for

licensure as a community association manager, Respondent failed

to disclose that on or about November 17, 1988, he entered a plea

of guilty to, and was found guilty of, knowingly and willfully

making a false statement in obtaining a United States passport in

violation of Title 18, United States Code, Section 1542.

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 exhibits.

The hearing transcript was filed March 25, 1999, and the

parties were accorded 10 days from that date to file proposed

recommended orders or argument. The parties elected to file such

a proposal or argument and the parties' submissions have been

duly-considered.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional

Regulation (Department), is a state government licensing and

regulatory agency charged, inter alia , with the duty and

responsibility to regulate the practice of community association

management pursuant to the provisions of Sections 455.01 through

455.275, and Sections 468.431 through 468.431, Florida Statutes.

2. Respondent, Hasnain Mehdi Hanif, is a licensed community

association manager in the State of Florida, having been issued

license number CAM 0020664.

3. On or about March 26, 1997, Respondent filed an

application (dated March 5, 1997) with the Department for

licensure as a community association manager. Pertinent to this

case, item (17)(c)2 on the application required that Respondent

answer yes or no to the following question:

2. Have you ever been convicted or been

found guilty of a felony or misdemeanor,

entered a plea of guilty or nolo contendere

(no contest) to a felony or misdemeanor?

Yes ( ) No ( )* This question applies to

any violation of the laws of any state,

territory or country without regard to

whether the matter is under appeal or you

were placed on probation, had adjudication

withheld, were paroled or pardoned.

*If the answer is yes, you must provide the

following information [date of offense, date

of arrest, date of disposition, case number,

charge, city, state, country, degree of

felony or misdemeanor, plea, and disposition]

for each offense and submit the following

documents, as applicable: police arrest

affidavit (need not be a certified true

copy); the charges (a certified true copy);

and plea, judgment and sentence (certified

true copies). Attach separate sheets of

paper using the same format or copy and

complete this page if you have more than one

offense. . . .

Respondent responded to the question by checking the box marked

"No."

4. The application concluded with the applicant's signature

immediately below the following affirmation:

I hereby certify that all of the information

provided in connection with this application

is true and correct to the best of my

knowledge and belief.

5. Consistent with the requirement imposed by Subsection

468.433(1), Florida Statutes, Respondent included a complete set

of fingerprints taken by an authorized law enforcement officer

with his application. The fingerprint card identified

Respondent, Hanif Hasnain Mehdi, as male, Asian, 5' 4" tall,

165 pounds, brown eyes, black hair, Social Security number

589-48-1476, and born in Bangladesh on October 16, 1966.

Following the mandate of Subsection 468.433(1), Florida Statutes,

the Department submitted the fingerprint card to the Department

of Law Enforcement for state processing and to the Federal Bureau

of Investigation (FBI) for federal processing.

6. On June 23, 1997, the Department received a report from

the FBI which revealed that, based on fingerprint comparisons,

Respondent had failed to disclose a criminal history on his

application. Specifically, the report revealed that Respondent

failed to reveal that he was arrested on August 11, 1988, in

Miami, Florida, on a charge of passport fraud, and that he had

been convicted on November 17, 1988, of uttering a false

statement in applying for a passport.

7. By letter of July 16, 1997, the Department advised

Respondent that, given the criminal history received from the

FBI, his application was deficient, and requested that he furnish

documentation pertinent to the incident reported by the FBI, as

well as an explanation of why the incident was not disclosed on

his application. The Respondent replied by letter of July 23,

1997, as follows:

The undersigned asserts that he was never

arrested and never charged with any crime ;

therefore, there was no reason to enclose any

explanation. The undersigned is also waiving

the 90-day time requirement for approval and

denial of the application, but expects that

as soon as a definite determination is made,

the applicant is scheduled for the test.

The undersigned sincerely expects the

Department and the concerned agencies to

check their records for accuracy.

As far as the applicant is concerned, there

is no reason why the Department of Business

and Professional Regulation should not

process his application. (Emphasis in

original.)

8. In August 1997, the Department made its first request

that the Clerk, United States District Court, Southern District

of Florida, provide it with certified copies of the documents

related to the criminal matter referenced in the FBI report.

That request, as well as numerous subsequent requests, proved

fruitless, since the Clerk experienced difficulty in retrieving

or locating the records (which had apparently been archived),

until on or about August 7, 1998, when certified copies of the

records were ultimately provided. In the interim, the Respondent

(by letter of April 13, 1998) essentially withdrew his waiver and

demanded that his application be processed. In response, the

Department (not being in receipt of any official documentation

regarding the offense) processed Respondent's application and on

May 28, 1998, following successful completion of the licensure

examination, issued Respondent a community association manager

license. Notwithstanding, the Department continued to pursue

documentation related to the incident reflected by the FBI

report. 1

9. Ultimately, in August 1998, the Department received the

documentation from the Clerk, United States District Court,

Southern District of Florida. Those records revealed that

Respondent was arrested on August 11, 1988, and charged by a

three-count Indictment 2 in the United States District Court,

Southern District of Florida, Case No. 88-0576 CR-NESBITT, as

follows:

Count I

On or about August 1, 1988, at Miami Beach,

Dade County, in the Southern District of

Florida, the defendant,

HASNAIN MEHDI HANIF,

in a matter with the jurisdiction of the

United State Department of State, a

department of the United States, did

knowingly and willfully make and use false

writings and documents knowing the same to

contain false, fictitious, and fraudulent

statements and entries to wit, a Baptismal

Certificate from the Diocese of Wichita

#B5135, and a letter from defendant's mother

stating he was a United States citizen, when

in truth and in fact, and as the defendant

then and there well knew, he was not baptized

in Wichita, Kansas, and he was not a United

States citizen; in violation of Title 18,

United States Code, Section 1001.

Count II

On or about June 27, 1988, at Miami Beach,

Dade County, in the Southern District of

Florida, the defendant,

HASNAIN MEHDI HANIF,

an alien, did falsely and willfully represent

himself to be a citizen of the United States,

in that he stated he was born in Wichita,

Kansas, in violation of Title 18, United

States Code, Section 911.

Count III

On or about June 27, 1988, at Miami Beach,

Dade County, in the Southern District of

Florida, the defendant,

HASNAIN MEHDI HANIF,

did knowingly and willfully make a false

statement in an application for a passport

with the intent to induce and secure the

issuance of a passport under the authority of

the United Stated, for his own use, contrary

to the laws regulating the issuance of

passports and the rules prescribed pursuant

to such laws, in that the defendant stated in

the application that he was born in Wichita,

Kansas, when in truth and in fact, and as the

defendant then and there well knew, he was

not born in Wichita, Kansas, in violation of

Title 18, United Stated Code, Section 1452.

10. The information of record in the criminal case

describes the Defendant, Hasnain Mehdi Hanif, as male, 5' 4"

tall, 135 pounds, brown eyes, black hair, Social Security number

589-48-1476, and born in Bangladesh on October 16, 1966.

Moreover, the Defendant there, Respondent here, were shown to

possess identical home phone numbers (305-754-0008); their

signatures were in all aspects similar; and their appearances, as

evidenced by photographs, were (but for the passage of 10 years

and a weight gain of 30 pounds) similar. In all, it cannot be

subject to serious debate that the Defendant named in the

criminal case and the Respondent in this case are the same

person.

11. The Respondent and the United States of America

(Government) entered into a plea agreement pursuant to which

Respondent agreed to plead guilty to Count III of the Indictment

and the Government would dismiss the remaining counts.

Subsequently, Respondent entered a plea of guilty to Count III,

and was found guilty of such offense (making a false statement in

obtaining a U.S. Passport). The judgment of the court was, as

follows:

IT IS THE JUDGMENT OF THIS COURT THAT: the

defendant is hereby committed to the custody

of the Attorney General of the United States

or his authorized representative for

confinement for a period of five (5) years

and a fine of $1,000.00.

IT IS FURTHER ADJUDGED that the execution of

said sentence of confinement is hereby

suspended and the defendant is placed on

probation for a period of two (2) years.

IT IS FURTHER ORDERED as a special condition

of probation, that if deported, the defendant

shall not re-enter the Untied States without

the permission of the Attorney General.

Counts I and II of the Indictment were dismissed on the motion of

the Government.

12. Following receipt of the documentation regarding the

criminal conviction, the Department filed the Administrative

Complaint at issue in this proceeding which, as amended, charged

that Respondent violated Section 455.227(1)(h), Florida Statutes,

by obtaining a license by fraudulent misrepresentation; Section

468.436(1)(b)4, Florida Statutes, by obtaining a license by means

of fraud, misrepresentation, or concealment of material facts;

Rule 61-20.001(4), Florida Administrative Code, and, therefore,

Section 468.436(1)(b)2, Florida Statutes, by having failed to

provide the Department with documentation regarding his criminal

record; and Section 468.436(1)(b)3, Florida Statutes, by being

convicted of a felony in any court in the United States.

13. At hearing, the Department offered proof, without

objection, that its costs of investigation and prosecution,

excluding costs associated with any attorney's time, totaled

$1,344.94, as of February 24, 1999.

CONCLUSIONS OF LAW

14. 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.

15. 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 law, 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).

16. Section 468.433, Florida Statutes, establishes the

licensure requirements for community association managers, as

follows:

(1) A person desiring to be licensed as a

community association manager shall apply to

the department to take the licensure

examination. Each applicant must file a

complete set of fingerprints that have been

taken by an authorized law enforcement

officer, which set of fingerprints shall be

submitted to the Department of Law

Enforcement for state processing and to the

Federal Bureau of Investigation for federal

processing. The cost of processing shall be

borne by the applicant. The department shall

examine each applicant who is at least 18

years of age and who the department certifies

is of good moral character.

(a) Good moral character means a personal

history of honesty, fairness, and respect for

the rights of others and for the laws of this

state and nation.

(b) The department may refuse to certify

an applicant only if:

1. There is a substantial connection

between the lack of good moral character of

the applicant and the professional

responsibilities of a community association

manager; and

2. The finding by the department of lack

of good moral character is supported by clear

and convincing evidence.

Rule 61-20.001, Florida Administrative Code, provides the

following additional procedures pertinent to the licensure of

community association managers:

61-20.001 Licensing Procedure for Manager's

License.

* * *

(4) General Procedure.

* * *

(d) The applicant shall supply the

division with required documentation (as

specified below) as to all matters which

comprise the applicant's criminal record.

All documentation must be completely legible.

Required documentation generally includes, as

applicable:

1. For arrests, the police arrest

affidavit or arrest report or similar

document (need not be certified true copy);

2. The charges (certified true copy);

3. Plea, judgment and sentence (certified

true copy); and

4. Order of entry into pre-trial

intervention, and where applicable, the order

of termination of pre-trial intervention

showing dismissal of charges (all must be

certified true copies).

* * *

(5) Good Moral Character.

(a) Unless the division denies the

application for incompleteness under

paragraph (4)(a) of this rule, the division

shall evaluate the application and make

appropriate inquiry to determine the

applicant's moral character. Demonstration

of all of the following will establish the

applicant's good moral character:

1. The completion of a criminal history

records check by the Florida Department of

Law Enforcement and self-disclosure by the

applicant that establishes that the applicant

has no criminal record; and

* * *

5. That the applicant has not committed

the following in connection with an

application:

* * *

b. Failed to provide full and complete

disclosure, or failed to provide accurate

information.

(b) If the applicant has failed to

establish good moral character under

paragraph (5)(a), the division will then

consider the following additional factors to

determine whether an applicant has good moral

character for purposes of licensure under

chapter 468, Part VIII, Florida Statutes:

* * *

2. If the applicant has committed a first

degree misdemeanor or a felony, and the

applicant's civil rights have been restored,

this alone shall not preclude a finding of

good moral character unless the crime is

directly related to the professional

responsibilities of a community association

manager. Crimes that are deemed to be

directly related to the professional

responsibilities of a community association

manager include, for example, fraud, theft,

burglary, bribery, arson, dealing in stolen

property, forgery, uttering a forged

instrument, sexual battery, lewd conduct,

child or adult abuse, murder, manslaughter,

assault, battery, and perjury. The applicant

has the burden of proving restoration of

civil rights by certified true copy of

government or court records reflecting such

action.

* * *

7. If the applicant makes incomplete,

misleading or false statements regarding

material facts in making an application, such

action will establish the applicant's lack of

good moral character, and the application

will be denied. . . .

17. Pertinent to this case, Section 468.436(1), Florida

Statutes, provides that the following acts constitute grounds for

which the Department may take disciplinary action against a

licensee, such as Respondent:

(a) Violation of any provision of s.

455.227(1).

(b) . . .

2. Violation of any lawful order or rule

rendered or adopted by the department or the

council.

3. Being convicted of or pleading nolo

contendere to a felony in any court in the

United States.

4. Obtaining a license or certification or

any other order, ruling, or authorization by

means of fraud, misrepresentation, or

concealment of material facts.

Also pertinent to this case, Section 455.227(1), Florida

Statutes, provides that the Department may take disciplinary

action against a licensee where it is shown that the licensee is

guilty of the following:

(h) Attempting to obtain, obtaining, or

renewing a license to practice a profession

by bribery, by fraudulent misrepresentation,

or through an error of the department or the

board.

18. At all times material hereto, Title 18, United States

Code, Section 1542 was in effect and described crimes involving

the use of false statements to obtain passports and the use of

passports so obtained. It also prescribed criminal penalties

which in 1988 included a maximum term of imprisonment of five

years. A 1994 amendment increased the maximum term of

imprisonment to ten years. Pursuant to Title 18, United States

Code, Section 1(1), any offense punishable by death or

imprisonment for a term exceeding one year is a felony.

19. To establish that a licensee committed a violation of

Subsection 455.227(1)(h) or 468.436(1)(b)4, Florida Statutes, 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 the foregoing provisions]

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), and Gentry v. Department of Professional and Occupational

Regulations , 293 So. 2d 95 (Fla. 1st DCA 1974).

20. Here, the Department has demonstrated that the

misleading, deceptive and untrue representations contained in

Respondent's application were 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). Consequently, it has been shown, as alleged in

the Amended Administrative Complaint, that Respondent violated

the provisions of Sections 455.227(1)(h) and 468.436(1)(b)4,

Florida Statutes.

21. The Department has also established that the crime with

which Respondent was convicted was a felony and, consequently,

Respondent has been shown to have violated the provisions of

Section 468.436(1)(b)3, Florida Statutes. Moreover, the use of a

false statement to obtain a passport in violation of Title 18,

United States Code, Section 1542 has heretofore been found to be

a crime involving moral turpitude. See Bisaillon v. Hogan , 257

F.2d 435 (9th Cir. 1958).

22. Finally, the Department has demonstrated that

Respondent violated the provisions of Rule 61-20.001(4)(d),

Florida Administrative Code, by having failed to provide the

Department with documentation regarding his criminal conviction.

Consequently, it has been shown that the Respondent also violated

the provisions of Section 468.436(1)(b)2, Florida Statutes, as

alleged in the Amended Administrative Complaint.

23. Having reached the foregoing conclusions, it remains to

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

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

that an administrative fine of $5,000.00 be assessed and that

Respondent's license be revoked. That proposal is consistent

with Sections 455.227(2) and 468.436(3), Florida Statutes.

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 as follows:

1. Finding the Respondent guilty of violating Sections

455.227(1)(h) and 468.436(1)(b)2, 3, and 4, Florida Statutes, as

alleged in Counts I through IV of the Amended Administrative

Complaint;

2. Requiring that Respondent pay an administrative fine of

$5,000.00;

3. Revoking the Respondent's community association manager

license number CAM 0020664; and

4. Assessing costs of investigation and prosecution,

excluding costs associated with an attorney's time, in the amount

of $1,344.94.

It is further RECOMMENDED that, if the foregoing

recommendation is adopted, the Department refer a copy of the

record in this case to the State Attorney, Dade County, Florida,

for that office to resolve whether the record herein

(Respondent's testimony at hearing and affirmation to the

Department) supports a charge of perjury against Respondent.

DONE AND ENTERED this 21st 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]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 1999.

ENDNOTES

1/ As a general rule, a licensee may not be disciplined for

conduct engaged in prior to licensure. An exception to this

general rule exists, however, where the prelicensure conduct in

question is the falsification of the licensee's licensure

application. See Taylor v. Department of Professional Regulation ,

534 So. 2d 782 (Fla. 1st DCA 1988), and Board of Medicine v. Mata ,

561 So. 2d 364 (Fla. 1st DCA 1990).

2/ The nature of his duplicity was stated by Respondent in a

sworn statement as follows:

I am a citizen of Bangladesh who was born

in Chittagong on October 16, 1966. I came to

the United States in 1986 on a student visa

issued at the U.S. Consulate, Dhaka. After

coming down here I obtained my driver license

and a social security card by using my

passport issued by the Government of

Bangladesh.

On June 27, 1988 I submitted and executed a

United States passport application at the

Miami Beach Post Office. As proof of

citizenship I provided a Florida State

Driver's License and Social Security card and

a photo copy of both documents.

I received a letter from the Miami Passport

Agency on 7/10/88 requesting my appearance.

On approximately 7/15/88 I received a request

for additional documentation of citizenship

from passport authorities. I forged a letter

of baptism from St. Paul's Church, Wichita,

Kansas. I also forged a letter from my

mother stating that I am of American

citizenship and United Stated birth. I

appeared in front of a notary public and

produced my drivers license and Social

Security card and executed a sworn statement

swearing I was a citizen of the United States

and of United States birth. I mailed these

forged documents to the passport authorities

on approximately 7/21/88. (Emphasis in

original.)

COPIES FURNISHED:

Theodore R. Gay, Esquire

Department of Business and

Professional Regulation

401 Northwest Second Avenue

Suite N-607

Miami, Florida 33128

Hasnain Mehdi Hanif

420 Northeast 76th Street

Apartment 7

Miami, Florida 33138

Edward Broyles, Executive Director

Community Association of Managers

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.