98-003608 Division Of Real Estate vs. Eulauia S. Harris Status: Closed Recommended Order on Friday, January 8, 1999.

Summary: Evidence shows that broker concealed plea of nolo contendere but misconduct was not sufficient to revoke license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, DIVISION )

OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-3608

)

EULAUIA S. HARRIS, )

)

Respondent . )

___________________________________ )

RECOMMENDED ORDER

A hearing was held in this case by video teleconference on

December 10, 1998, before Arnold H. Pollock, an Administrative

Law Judge with the Division of Administrative Hearings. The

Administrative Law Judge attended from Tallahassee, while

Respondent, counsel for both parties, all witnesses, and the

court reporter attended from Tampa.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Frederick H. Wilsen, Esquire

Frederick H. Wilsen & Associates, P.A.

1999 West Colonial Drive

Suite 211

Orlando, Florida 32804

STATEMENT OF THE ISSUE

The issue for consideration in this case is whether

Respondent’s license as a real estate broker in Florida should be

disciplined because of the matters alleged in the Administrative

Complaint filed herein.

PRELIMINARY MATTERS

By Administrative complaint dated May 20, 1998, the Division

of Real Estate of the Department of Business and Professional

Regulation alleged that Respondent obtained her license as a real

estate broker in Florida by fraud, misrepresentation, or

concealment, and had been found guilty of a crime which relates

directly to the activities of a real estate salesperson, when she

indicated on her application for licensure as a broker in 1996

that she had never been convicted of a crime, been found guilty,

or entered a plea of guilty or nolo contendere , even if

adjudication was withheld, in violation of Section 475.25(1)(m),

Florida Statutes. Respondent, through counsel, by letter dated

July 30, 1998, requested formal hearing on the allegations and

this hearing ensued.

At the hearing, Petitioner presented the testimony of

Michael L. Day, an investigative specialist with the Department

of Business and Professional Regulation (Department), and

introduced Petitioner’s Exhibits 1 through 3. Respondent

testified in her own behalf and presented the testimony of

Laconia Palmer, her niece. Respondent also introduced

Respondent’s Exhibits 1 through 3.

No transcript of the proceedings was furnished. Subsequent

to the hearing only counsel for Petitioner submitted matters in

writing, which were carefully considered in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the

Department’s Division of Real Estate was the state agency in

Florida responsible for the licensing of real estate salespersons

and brokers in Florida and for the presentation of disciplinary

cases regarding those individuals on behalf of and before the

Florida Real Estate Commission. The Respondent was a licensed

Florida real estate broker having been issued license number

0453845. Respondent was a broker at Quality Home Realty Inc.,

located at 8319 North 40th Street in Tampa.

2. On or about June 10, 1996, Respondent, who was then

licensed as a real estate salesperson in Florida, submitted an

application for licensure as a real estate broker in this state.

Respondent answered “no” to question 9 of the application, which

reads, in pertinent part:

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? . . . If you

intend to answer “NO” because you believe

those records have been expunged or sealed by

court, . . . you are responsible for

verifying the expungement or sealing prior to

answering “NO.”

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.

As a result of this application and her passing the brokers’

examination, Respondent was licensed as a real estate broker in

Florida.

3. In fact, however, on January 13, 1992, Respondent had

pleaded nolo contendere in County Court in Hillsborough County to

a charge of obtaining property by worthless check. Respondent

was licensed as a salesperson at the time. Adjudication was

withheld and Respondent was ordered to make restitution and pay a

fine and costs of $87.00, which she did.

4. Respondent does not deny that she entered the plea as

alleged. She contends, however, that at the time the check was

issued, she was in the hospital receiving treatment for chemical

damage to her lungs. She alleges that she had given several

personal checks on her account, signed in blank, to her niece,

Ms. Palmer, who was supposed to pay her bills with them after

first depositing sufficient funds, which Respondent had also

given her, to the bank to cover the checks. Respondent contends

that her niece did not make the deposits on time and the check in

issue, written to pay for automobile repairs, was dishonored.

The repair man did not contact her to obtain reimbursement, but

the check was, nonetheless, subsequently redeemed. Respondent’s

factual allegations in this regard were confirmed by Ms. Palmer,

and they are so found.

5. Respondent also contends that several years later, by

the time she filled out the application form for licensure as a

broker, she had forgotten about the incident because, she claims,

the judge had advised her the charge against her would be

dismissed upon her making restitution and her payment of the fine

and costs. She claims she did not believe she had a criminal

conviction which had to be listed. She also contends that since

the incident was a matter of public record, she had no reason to

hide it, and that her failure to list it on the application was

the result of a simple mistake. Her claim of mistake is

rejected.

6. Respondent has been a licensed real estate professional

since being licensed as a salesperson in January 1995. To her

knowledge, no complaints have ever been lodged against her, nor

has any other disciplinary action ever been taken against her.

The records of the Division reflect no complaints or any prior

disciplinary action. However, Respondent admits that several

years prior to her licensure as a salesperson, she was arrested

for assault. That charge was dismissed.

7. Respondent is presently active as a real estate broker

and derives all her support from her practice. She claims to

love the real estate business and contends she has a good

reputation in the business community. In that regard, four

individuals, including two real estate brokers, a deputy sheriff,

and a long-standing friend and associate, submitted letters in

support of Respondent’s continued licensure. The two brokers

attest to her honesty, integrity, and professionalism, as did the

deputy, who also works in the profession. The friend, an

associate in community activities, attests to Respondent’s

extensive involvement in youth reclamation activities and her

church, and describes Respondent as a role model for the youth of

the community. All support her maintaining her license and her

continued participation in the profession.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has jurisdiction

over the parties and the subject matter in this case. Section

120.57(1), Florida Statutes.

9. Petitioner seeks to discipline Respondent’s license as a

real estate broker because, it alleges, at the time she submitted

her application for licensure as a broker, she falsely claimed

never to have pleaded nolo contendere to a crime, in violation of

Section 475.25(1)(m), Florida Statutes. The burden to establish

Respondent’s guilt of the offense alleged by clear and convincing

evidence rests upon the Petitioner. Department of Banking and

Finance v. Osborne Stern and Company , 670 So. 2d. 932 (Fla.

1996), Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

10. The evidence shows that at the time Respondent entered

the plea alleged, she was licensed as a salesperson in Florida.

It is also clear that when she made application for licensure as

a broker, some years later, she failed to acknowledge her prior

plea of nolo contendere , and her answer to the question in issue

was incorrect. Counsel for Petitioner admits, however, that the

evidence is not clear that Respondent knew that sufficient funds

were not available at the time the dishonored check was written

by her niece, and it was this offense to which Respondent pleaded

nolo contendere .

11. Nonetheless, the standard for culpability in those

offenses alleging fraud, misrepresentation, or concealment is

that the licensee engaged in an intentional act of misconduct.

Walker v. Florida Department of Business and Professional

Regulation , 705 So. 2d 652 (Fla. 5th DCA 1998). The significance

of the questions asked on the application form can be found in

Rule 61J2-2.027, Florida Administrative Code. The rule indicates

that the license application must be answered honestly so that an

inquiry may be made to determine whether the applicant

demonstrates those characteristics of honesty, truthfulness, and

trustworthiness necessary to ensure safety to investors.

12. Respondent claims that she did not intend to

misrepresent or conceal her prior court appearance; yet, after

she appeared in court, entered a plea in open court, and paid a

fine and costs, it is unrealistic to claim she did not remember

that incident or think she had to report it on the application.

There is nothing confusing about the terms of the question on the

application form or the explanation of what is required. Under

the circumstances of this case, the agency has met its burden of

proving the violation.

13. Petitioner suggests as penalty here that Respondent’s

license be revoked, but with right to reinstate it after two

years. To be sure, Respondent committed the acts attributed to

her. However, under the circumstances of this case, it does not

appear that her actions over many years of exemplary practice,

with no indication of any impropriety related to her real estate

activities, justify excluding her from the practice of the

profession, even for two years.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Florida Real Estate Commission

enter a Final Order finding Eulauia S. Harris guilty of a

violation of Section 475.25(1)(m), Florida Statutes, and placing

her license on probation for a period of two years.

DONE AND ENTERED this 8th day of January, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

ARNOLD H. POLLOCK

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 8th day of January, 1999.

COPIES FURNISHED:

Steven W. Johnson, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Frederick H. Wilsen, Esquire

Gillis & Wilsen

1999 West Colonial Drive

Suite 211

Orlando, Florida 32804

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0700

James Kimbler

Division Director

Division of Real Estate

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

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.