98-003051 Division Of Real Estate vs. Juan Carlos Bonitto Status: Closed Recommended Order on Tuesday, November 3, 1998.

Summary: Respondent guilty of concealment for failure to disclose conviction of crime in California on real estate salesperson`s license application; revocation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-3051

)

JUAN CARLOS BONITTO, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative

Hearings, before Daniel M. Kilbride, Administrative Law Judge, in

Orlando, Florida, on October 14, 1998. The following appearances

were entered:

APPEARANCES

For Petitioner: Laura McCarthy, Chief Deputy Attorney

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Florida 32801-1772

For Respondent: No app earance

STATEMENT OF THE ISSUE

Whether Respondent is guilty of obtaining a license by means

of fraud, misrepresentation or concealment, in violation of

Section 475.25(1)(m), Florida Statutes (1995).

PRELIMINARY STATEMENT

By Administrative Complaint filed November 20, 1997,

Petitioner, Department of Business and Professional Regulation,

Division of Real Estate ("Petitioner") alleged that Juan Carlos

Bonitto (Respondent) violated the aforementioned statute in that

Respondent failed to disclose his plea of no contest in a

criminal matter on his real estate salesperson's licensure

application. Respondent disputed the allegations of fact and

requested a formal hearing.

This matter was referred to the Division of Administrative

Hearings and a formal hearing was scheduled. Notice was sent to

the parties at the address provided. A formal hearing was held

on October 14, 1998, by video teleconference. Diligent search

and inquiry was made to locate the Respondent but he could not be

located. Respondent did not appear at the hearing. After a

reasonable time the hearing was convened. Petitioner called no

witnesses. Petitioner's Exhibits 1 through 5 were received into

evidence. No evidence was offered on behalf of Respondent. The

hearing was recorded, but not transcribed. Petitioner filed a

Proposed Recommended Order on October 23, 1998. No proposals

have been offered on behalf of Respondent.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency

charged with the responsibility and duty to prosecute

Administrative Complaints pursuant to the laws of the State of

Florida.

2. Respondent is and was at all times material to this

proceeding a licensed Florida Real Estate Salesperson. He was

issued licensed number 0625149 in accordance with Chapter 475,

Florida Statutes. His license is currently inactive.

3. On or about April 6, 1995, Respondent submitted an

application for licensure as a Real Estate Salesperson.

4. Question number 9 on the application read as follows:

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 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 any

other state, you are responsible for

verifying the expungement or sealing prior to

answering "NO".

If you answered "Yes," attach details

including dates and outcome, including

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 understand the question, consult with an

attorney or the Division of Real Estate.

5. Respondent marked the "NO" box beside question number 9.

Respondent then signed the "Affidavit of Applicant" which read

above his signature:

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

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 recollection 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.

6. On or about July 6, 1989, Respondent, going by the name

of Pablo Alfaro, pled no contest to misdemeanor "joyriding" in

Case No. 93CM04225, in Santa Ana, California.

7. Respondent admitted to pleading no contest to a

"joyriding” charge.

8. By letter dated August 27, 1997, addressed to

Petitioner, Respondent's employer at the time, John Maizie,

Executive Sales Director of Cypress Pointe Resort, wrote that

Respondent was an ethical and valued employee.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter of this cause, pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

10. The parties were duly noticed pursuant to the notice

provisions of Chapter 120, Florida Statutes.

11. The Petitioner's authority to prosecute Administrative

Complaints is derived from Chapter 475, Florida Statutes.

12. Revocation of license proceedings are penal in nature.

State ex rel. Vining v. Florida Real Estate Commission , 281 So.

2d 487 (Fla. 1973). The Petitioner bears the burden of proving,

by clear and convincing evidence, that acts alleged in the

Administrative Complaint occurred. Ferris v. Turlington , 510 So.

2d 292 (Fla. 1987), Department of Banking and Finance v. Osborne

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

13. Petitioner satisfied its burden of proof. Petitioner

demonstrated that Respondent violated Section 475.25(1)(m) by

obtaining his license through fraud, misrepresentation or

concealment.

14. Respondent admitted in writing that he had pled no

contest to the charge of "joyriding" as alleged in the

Administrative Complaint. Respondent's admissions are sufficient

to prove the facts alleged. See Section 90.803(18)(a), Florida

Statutes (1997).

15. It is clear from the record that Respondent had actual

or constructive knowledge that he was making a material

misstatement when he answered "NO" to question number 9 on the

application. This constituted misrepresentation and concealment

on his part. Misrepresentation is ". . . conduct which amounts

to an assertion not in accordance with the truth." Nagashima v.

Busch , 541 So. 2d 783 (Fla. 4th DCA 1989), citing Comment (b) to

Section 525, Restatement (Second) of Torts . Misrepresentation

naturally includes the element of intent. Walker v. Department

of Business and Professional Regulation , 705 So. 2d at 654 (Fla.

5th DCA 1998). Wrongful intent "can be established by a showing

of actual knowledge," or by a showing that one "was reckless or

careless as to the truth of the matter asserted." Ocean Bank of

Miami v. Inv.- Uni Inv. Corp. , 599 So. 2d 694, 697 (Fla. 3d DCA),

rev. den. 606 So. 2d 1165 (Fla. 1992).

16. Rule 61J2-2.027(2), Florida Administrative Code,

describes the significance of the licensure application. It says

that "[t]he 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." By answering "NO"

to question 9 in the application, Respondent made this difficult,

and obtained a license without giving the Department of Business

and Professional Regulation the opportunity to evaluate him for

fitness to deal with the public in an honest manner.

17. Disciplinary actions under Chapter 475, Florida

Statutes, have as their primary purpose protection of "the

general public from unscrupulous or dishonest real estate

operators." Brod v. Jernigan , 188 So. 2d 575 (Fla. 1st DCA 1966)

quoting Horne v. Florida Real Estate Commission , 163 So. 2d 515

(Fla. 1st DCA 1964). Petitioner has shown by clear and

convincing evidence that Respondent was dishonest with regard to

this criminal history when he answered "NO" to question number 9

on the application.

18. Petitioner's proof is clear and convincing, and

sufficient to justify the imposition of a penalty within the

range of those provided for in the above-cited statutory

authority.

19. Section 475.25(1), Florida Statutes, allows for

revocation of a license when the licensee has obtained the

license by means of fraud, misrepresentation, or concealment.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that Respondent be found guilty of violating

Section 475.25(1)(m), Florida Statutes, as charged in the

Administrative Complaint, and that Respondent's license should be

revoked.

DONE AND ENTERED this 3rd day of November, 19 98, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

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 3rd day of November, 1998.

COPIES FURNISHED:

Laura McCarthy, Chief Deputy Attorney

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Florida 32801-1772

Juan Bonitto

2851 Runyon Circle

Orlando, Florida 32837-5214

Henry M. Solares, Division Director

Division of Real Estate

Department of Business and

Professional Regulation

Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame, 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.