99-002292 Florida Real Estate Appraisal Board vs. Iris Adames Status: Closed Recommended Order on Monday, October 25, 1999.

Summary: Licensee is not guilty of obtaining her license by fraud or misrepresentation because she reasonably believed that her criminal record had been sealed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, FLORIDA )

REAL ESTATE APPRAISAL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-2292

)

IRIS ADAMES, )

)

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

September 10, 1999, by video teleconference with sites in

Tallahassee and Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Sunia Y. Marsh, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Iris Adames, pro se

6503 North Military Trail

Apartment 2308

Boca Raton, Florida 33496

STATEMENT OF THE ISSUE

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 April 20, 1999, Petitioner issued a two-count

Administrative Complaint which charged that Respondent, a

registered real estate appraiser, violated certain provisions of

Section 475.624, Florida Statutes. Count I alleged that

Respondent violated the provisions of Subsection 475.624(12),

Florida Statutes, by having "obtained a license by means of

knowingly submitting false information, or engaging in

misrepresentation." The gravamen of such charge was Petitioner's

contention that in applying for registration as a real estate

appraiser Respondent falsely represented that she had never pled

nolo contendere to a crime. Count II alleged that Respondent

violated the provisions of Subsection 475.624(6), Florida

Statutes, by "having had a professional license revoked or

otherwise acted against in any jurisdiction." The gravamen of

such charge was Petitioner's contention that "the Florida Real

Estate Commission revoked Respondent's real estate salesperson's

license after finding her guilty of obtaining her salesperson's

license by means of fraud, misrepresentation or concealment, and

failure to timely advise [the Florida Real Estate Commission] of

a change in her mailing address.

Respondent filed an election-of-rights wherein she disputed

the allegations of fact contained in the Administrative

Complaint. Consequently, 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 1-3 were received into evidence.

Respondent testified on her own behalf, and Respondent's Exhibits

1-4 were received into evidence.

The transcript of hearing was filed October 4, 1999, and the

parties were accorded 10 days from that date to file proposed

recommended orders. Petitioner elected to file such a proposal

and it has been duly-considered.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional

Regulation, Florida Real Estate Appraisal Board (Department), is

a state government licensing and regulatory agency charged with

the duty and responsibility to prosecute administrative

complaints pursuant to the laws of the State of Florida, in

particular Section 20.165, Florida Statutes, Chapters 120, 455,

and 475, Florida Statutes, and the rules promulgated pursuant

thereto.

2. Respondent, Iris Adames, is now and was at all times

material hereto, a registered real estate appraiser in the State

of Florida, having been issued license number RI0003454.

3. On or about March 21, 1996, Respondent filed an

application (dated March 8, 1996) with the Department for

licensure as a registered real estate appraiser. Pertinent to

this case, item 11 on the application required that Respondent

answer yes or no to the following question:

Have you ever 1) been convicted of a crime,

2) pled nolo contendere to any crime? (This

question applies to any violation of any

municipality, county, state, or nation,

including traffic offenses --but not parking,

speeding, inspection, or traffic signal

violations-- regardless of whether you were

placed on probation, had adjudication

withheld, were paroled or were pardoned.)

Respondent responded to the question by checking the box marked

"N[o]."

4. The application concluded with the applicant's signature

immediately below the following affirmation:

. . . I have read the questions in this

application and have answered them completely

and truthfully to the best of my

knowledge. . . .

5. Contrary to Respondent's response to item 11 on the

application, the proof demonstrates that on October 23, 1995,

Respondent pled nolo contendere to the crime of uttering a

worthless check, a first degree misdemeanor, in the Circuit

Court, Eighteenth Judicial Circuit, Brevard County, Florida, Case

No. 94-23154-CF-A. The court entered an order withholding

adjudication of guilt, placed Respondent on probation for a

period of six months, and imposed a fine and costs totaling

$105.65.

6. On September 18, 1997, the Florida Department of

Business and Professional Regulation, Division of Real Estate

(Florida Real Estate Commission or FREC) issued an Administrative

Complaint against Respondent, as a licensed real estate

salesperson. That complaint alleged, in pertinent part, as

follows:

4. At the time Respondent made application

for a real estate license, Respondent was

asked to indicate whether or not [s]he had

"ever been convicted of a crime, found

guilty, or entered a plea 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 . . . without regard

to whether you were placed on probation, had

adjudication withheld, paroled or pardoned."

Respondent checked the "No" box. (Licensure

Application, at Question 9).

5. Respondent swore and attested that all

answers and information contained in h[ er]

application were true and correct.

Respondent's signature was duly notarized.

6. On or about October 23, 1995,

Respondent entered a plea of nolo contendere

to one count of writing a worthless check, a

first degree misdemeanor (§ 832.05, Fla.

Stat.) A true and correct copy of the Order

of Judgment is attached hereto, incorporated

herein and made a part hereof by reference as

Administrative Complaint Exhibit 2.

7. Further, in connection with this

investigation, mail addressed from Petitioner

to Respondent was returned by the U.S. Postal

Service noting that Respondent has moved

without any forwarding address.

COUNT I

Based upon the foregoing, Respondent is

guilty of obtaining a license by means of

fraud, misrepresentation, or concealment in

violation of § 475.25(1)(m), Fla. Stat.

COUNT II

Based upon the foregoing, Respondent is

guilty of failing to timely advise Petitioner

of a change of mailing address in violation

of Rule 61J2-10.037, Fla. Admin. Code and,

therefore, in violation of § 475.25(1)(e),

Fla. Stat.

WHEREFORE, Petitioner respectfully requests

the Florida Real Estate Commission to issue a

Final Order as final agency action finding

the Respondent(s) guilty as charged. 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 of

or all of the above penalties as provided by

§ 455.227 and § 475.25(1), Fla. Stat. and

Fla. Admin. Code R. 61J2-24.001. In addition

to the foregoing, Petitioner requests an

award of costs as provided by § 455.227(3),

Fla. Stat.

Respondent did not formally respond to the Administrative

Complaint and on February 18, 1998, the Florida Real Estate

Commission held a hearing on Petitioner's Request for an Informal

Hearing and Motion for Final Order. Respondent was served with a

copy of the notice of hearing and failed to appear.

7. By final order dated February 18, 1998, and filed

March 9, 1998, the Florida Real Estate Commission resolved the

case, as follows:

Upon a complete review of the evidence

presented by the Department of Business and

Professional Regulation, Division of Real

Estate, the Florida Real Estate Commission

finds:

1. That the Respondent was properly served

with the Administrative Complaint and failed

to request a hearing or otherwise respond to

the service of Administrative Complaint. See

s. 120.60(5), Florida Statutes, and Rules 28-

5.111 and 28-6.009, Florida Administrative

Code.

2. That there are no disputed issues of

material fact and, therefore, the

Petitioner's Motion for an Informal Hearing,

pursuant to s. 120.57(2), Florida Statutes,

is granted.

3. That the Petitioner has established a

prima facie case.

4. That the facts and legal conclusions

contained in the Administrative Complaint are

adopted as true and that violations of

Chapter 475, Florida Statutes, have occurred,

as stated in the Administrative Complaint, a

copy of which is attached hereto as Exhibit A

and made a part hereof.

Therefore, the Commission ORDERS that the

license of Iris Amor Adames be revoked.

This Order shall be effective on date of

filing with the Clerk of the Department of

Business and Professional Regulation.

However, any party affected by this Order has

the right to seek judicial review, pursuant

to s. 120.68, Florida Statutes, and

Rule 9.110, Florida Rules of Appellate

Procedure.

Within 30 days of the filing date of this

Order, review proceedings may be instituted

by filing a Notice of Appeal with the Clerk

of the Department of Business and

Professional Regulation, at Suite 309 North

Tower, 400 West Robinson Street, Orlando,

Florida 32801. At the same time, a copy of

the Notice of Appeal, with applicable filing

fees, must be filed with the appropriate

District Court of Appeal.

8. In her response to Count I of the Administrative

Complaint, and again at hearing, Respondent explained she entered

the plea of nolo contendere to the worthless check charge based

upon advice of her court-appointed counsel even though (in her

opinion) she was innocent of the charge. As for her negative

response to the question posed on the application, Respondent

averred she understood the judge to have directed her attorney to

have her records sealed, she assumed he had done as directed, and

consequently gave what she understood was an appropriate response

to the question on the application. See Section 943.059(4),

Florida Statutes.

9. Here, Respondent's explanation for her failure to

disclose her plea on her application is credited, and it is

resolved that, at the time she submitted her application,

Respondent did not intend to mislead or deceive those who would

be reviewing the application. In so concluding, it is observed

that Respondent's testimony was candid and her understanding of

the disposition of the matter (and the propriety of her response

to the question on the application) was, given her unfamiliarity

with such matters, reasonable. 1/

10. Count II of the Administrative Complaint sought to take

disciplinary action against Respondent based on the Final order

of the Florida Real Estate Commission (FREC) which had

disciplined (revoked) Respondent's licensure as a real estate

sales person. As heretofore noted, that final order was premised

on Respondent's failure to respond to a two-count Administrative

Complaint. Count I was predicated on the same issue raised by

the Department in the instant case, and Count II was premised on

Respondent's "fail[ure] to timely advise [FREC] of a change in

her mailing address."

11. Here, Respondent explained her failure to respond to

the FREC complaint as follows:

. . . when I called Tallahassee, they told

me that you have 48 hours to respond, or get

a lawyer. I say excuse me, I cannot just go

and get a lawyer.

Because, why? Because, now in 1998, since

December 1997, I've been into a domestic

violence case, and I almost -- Me and my

daughter almost got killed.

And, in the meantime, the father of my

child took my car, took every means for me to

make my living. I was almost fighting all

the time.

December, January, February, I was fighting

eviction. I was fighting the court. And,

all the problems. And, I have all the

paperwork here.

And, I cannot take more stress. Now, you

ask me my life -- My life, and the life of my

child is priority. I cannot just go, and

hire a lawyer.

I don't have the money. I don't have the

means. You have to give me more time. And

to say that I am sorry it's only 48 hours,

you should had [sic] been in response to this

before, and that's it.

When she told me that, what else can I do?

So, I said well, fine. One day I will go

back, and try to reopen the case. There is

nothing that I can do at this moment.

(Transcript, pages 28-30.) With regard to her failure to keep

FREC informed regarding her current address, Respondent

explained:

The reason I didn't keep changing my

addresses is because my realtor appraiser

license, the person who supervised my work,

Gary Eilen, he's the father of my child, he's

the person who I get the injunction for.

That's why sometimes I just tried to

disappear from his life. And, when -- That's

one of the complaints that I don't keep

moving with my addresses, but he [could] get

it from the state [if she informed the state

of her new address. Therefore, for safety

reasons, she chose not to notify FREC of her

new address].

(Transcript, page 39.)

12. Respondent's testimony was candid and credible, and her

domestic problems (at the time of the FREC proceeding) well-

documented. See Respondent's Exhibit 4. Had Respondent the

means and opportunity to contest the FREC complaint, the

conclusion of that proceeding would, most likely, have mirrored

the conclusions reached in this case. In sum, given the

conclusion reached here that (by her response to the application

at issue in this case) Respondent did not intend to mislead or

deceive the Department, a de minimus penalty should be imposed as

a consequence of the FREC Final Order, which was essentially

entered by default and premised on the same issue (of non-

disclosure) raised in this case (and resolved favorably to the

Respondent).

CONCLUSIONS OF LAW

13. 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).

14. Where, as here, the Department proposes the 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 1 987); 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 475.624, 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).

15. Pertinent to this case, Section 475.624, Florida

Statutes, provides that the Florida Real Estate Appraisal Board:

. . . may reprimand or impose an

administrative fine not to exceed $5,000 for

each count or separate offense against any

such appraiser; and may revoke or suspend,

for a period not to exceed 10 years, the

registration, license, or certification of

any such appraiser, or place any such

appraiser on probation, if it finds that the

registered assistant, licensee, or

certificateholder:

* * *

(6) Has had a registration, license, or

certification as an appraiser revoked,

suspended, or otherwise acted against, or has

been disbarred, or has had her or his

registration, license, or certificate to

practice or conduct any regulated profession,

business, or vocation revoked or suspended by

this or any other state, any nation, or any

possession or district of the United States,

or has had an application for such

registration, licensure, or certification to

practice or conduct any regulated profession,

business, or vocation denied by this or any

other state, any nation, or any possession or

district of the United States.

* * *

(12) Has obtained or attempted to obtain a

registration, license, or certification by

means of knowingly making a false statement,

submitting false information, refusing to

provide complete information in response to

an application question, or engaging in

fraud, misrepresentation, or concealment.

16. To establish that a licensee committed a violation of

Subsection 475.624(12), Florida Statutes, the Department must

show not only that the licensee provided false or misleading

information on her 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 475.624(12)] 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))"; 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.")

17. Here, it is undisputed that Respondent's answer to the

inquiry made in item 11 of the application was inaccurate;

however, 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 she did, Respondent did not intend to

deceive or defraud anyone about her past, but rather responded in

a manner she believed, in good faith, was appropriate.

Consequently, the charge (as stated in Count I of the

Administrative Complaint) that Respondent "obtained a license by

means of knowingly submitting false information, or engaging in

misrepresentation," in violation of Subsection 475.624(12),

Florida Statutes, must be dismissed.

18. While the Department failed to sustain Count I of the

Administrative Complaint, it did demonstrate with the requisite

degree of certainty that (as alleged in Count II of the

Administrative Complaint) Respondent violated the provisions of

Subsection 475.624(6), Florida Statutes, by "having had a

professional license revoked or otherwise acted against in any

jurisdiction." Having so concluded, it remains to resolve the

appropriate penalty that should be imposed.

19. Here, the Department's Proposed Recommended Order

suggests, as a penalty for the violation of Subsection

475.624(6), that Respondent be issued a reprimand. That proposal

is consistent with Section 475.624, Florida Statutes, as well as

the penalty guidelines, and the aggravating and mitigating

factors established by Rule 61J1-8.002, Florida Administrative

Code. Gadsden State Bank v. Lewis , 348 So. 2d 343 (Fla. 1st DCA

1977)(Agencies must honor their own substantive rules until they

are amended or abrogated). 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 not guilty of violating of Subsection 475.624(12),

Florida Statutes, as alleged in Count I of the Administrative

Complaint.

It is further RECOMMENDED that the final order find the

Respondent guilty of violating Subsection 475.624(6), Florida

Statutes, as alleged in Count II of the Administrative Complaint,

and that for such violation Respondent receive a reprimand.

DONE AND ENTERED this 25th day of October, 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 25th day of October, 1999.

ENDNOTE

1/ Respondent also offered proof that her attorney had criminal

charges filed against him (in or about June and September 1998)

and had been granted leave to withdraw from the Florida Bar (by

order of the Florida Supreme Court, dated December 29, 1998).

(Respondent's Exhibit 1.) The relevance of these matters, given

their remoteness in time to the 1995 criminal matter in which

Respondent was involved, is not apparent from the record.

COPIES FURNISHED:

Sunia Y. Marsh, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

Iris Adames

6503 North Military Trail

Apartment 2308

Boca Raton, Florida 33496

Herbert S. Fecker, Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

Barbara D. Auger, 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.