98-005113 Department Of Business And Professional Regulation, Division Of Real Estate vs. Marcos Antonio Arguelles Status: Closed Recommended Order on Wednesday, December 15, 1999.

Summary: Failure to accurately disclose criminal history not expunged or sealed constitutes a violation of the licensing statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

vs. ) Case No. 98-5113

)

)

MARCOS ANTONIO ARGUELLES, )

)

Respondent. )

)

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 23, 1999, by video teleconference with the parties

appearing from Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Nancy P. Campiglia, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post O ffice Box 1900

Orlando, Florida 32802-1900

For Respondent: Thomas Payne, Esquire

3780 West Flagler Street

Miami, Florida 33134

STATEMENT OF THE ISSUES

Whether the Respondent committed th e violations alleged in

the administrative complaint and, if so, what penalty, should be

imposed.

PRELIMINARY STATEMENT

This case began on October 21, 1998, when the Department of

Business and Professional Regulation, Division of Real Estate

(Department), issued a two-count Administrative Complaint

against the Respondent, Marcos Antonio Arguelles. Such

complaint alleged that Respondent had falsely answered a

question on the application for licensure. As a result, the

Department maintained that the Respondent obtained the license

by means of fraud, misrepresentation, or concealment in

violation of Section 475.25(1)(m), Florida Statutes. Further,

the Department averred that the Respondent failed to disclose in

his application the information required by Rule 61J2-2.027(2),

Florida Administrative Code, in violation of Section

475.25(1)(e), Florida Statutes.

The Respondent timely completed an Election of Rights

wherein he disputed the allegations of fact and requested a

formal administrative hearing. Thereafter, the matter was

forwarded to the Division of Administrative Hearings for formal

proceedings.

At the hearing, the Petitioner presented testimony from

Brian A. Piper, Sr., an investigator specialist II, employed by

the Department’s Bureau of Enforcement. The Petitioner’s

Exhibits numbered 1A, 1B, 2, 3, 4, 5, and 6 were admitted into

evidence. The Respondent testified in his own behalf and

offered testimony from J.C. Elso and Randall Petre, criminal

defense lawyers.

The Transcript of the proceedings was filed on August 23,

1999. The parties were granted two extensions of time to file

proposed recommended orders. Both proposed orders have been

considered the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is the state age ncy charged with the

regulation of real estate licensees in the State of Florida.

2. At all times material to the allegations of this case,

the Respondent was a licensed real estate salesman, license

number 0646052.

3. On or about July 15, 1996, the Re spondent completed an

application for licensure as a real estate salesperson that was

submitted to the Department. Such application posed several

questions to be completed by the Respondent by checking boxes

"Yes" or "No."

4. Among such questions was the following:

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."

5. In addition to the foregoing, the question also advised

the Respondent as follows:

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

an attorney or the Division of Real Estate.

6. After reviewing the foregoing question, the Respondent

submitted the answer "No" on his application for licensure. The

Respondent represented at hearing that prior to submitting the

application he consulted an attorney.

7. The Respondent's application for licensure also

contained an affidavit wherein the Respondent, after being

sworn, represented that he had carefully read the application

and that all answers to same are true and correct.

8. The answer the Respondent gave to the above-described

question was not accurate. In fact, in Case No. 87-2661-CF

before the Circuit Court of Alachua County, Florida, the

Respondent was charged with grand theft of the amount of

$4200.00, a felony.

9. The resolution of such charge came when the Respondent

entered a plea of nolo contendere . Thereafter the Respondent

was placed on probation for a period of three years and was

directed to pay court costs and restitution. The court withheld

adjudication and the Respondent successfully completed all

conditions of the probation.

10. At the time of the foregoing plea the Respondent was

represented by counsel, was apprised of his rights regarding the

charge pending against him, had no prior convictions, and was

approximately 19 years of age with satisfactory mental health.

11. The record of the Respondent’s plea and the conditions

of his probation have not been sealed nor expunged.

12. The Respondent did not deny the factual allegations in

the underlying criminal matter. That is, he has not alleged

that the charge of grand theft was untrue. He has asserted that

he believed the record would not appear on a background check

and that, therefore, he unintentionally failed to disclose the

criminal record.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

these proceedings.

14. Section 475.25(1), Florida Statutes, provides, in

pertinent part:

(1) The 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 part I of chapter 455.

* * *

(m) Has obtained a license by means of

fraud, misrepresentation, or concealment.

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

provides:

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, or

(b) if now a patient of a mental health

facility or similar institution for the

treatment of mental disabilities, or

(c) if ever called by, or done business

under any other name, or alias, than the

name signed on the application, with

sufficient information to enable the

Commission to investigate the circumstances,

or

(d) if ever had a broker's or salesperson's

license revoked, suspended, or otherwise

acted against, or had an application for

such licensure denied, by the real estate

licensing agency of another state,

territory, or country.

16. The Petitioner bears the burden of proof in this cause

to establish by clear and convincing evidence the allegations

against the Respondent. Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

17. In this case the Petitioner has established by clear

and convincing evidence that the Respondent submitted an

inaccurate and misleading application for licensure. By virtue

of the misrepresentation as to his past criminal record

Respondent received a license. The Respondent’s assertions as

to his belief that the record would not be released or available

to the public have not been deemed persuasive. The clear and

unambiguous language of the application directed the Respondent

to disclose the nolo plea and resulting probation. He did not.

That he could have, should have, or might still obtain an

expungement of the record does not negate the misrepresentation

of his answer. It was the Respondent’s responsibility to verify

that the record had been sealed or expunged before answering as

he did.

18. Rule 61J2-24.001, Florida Administrative Code, sets

forth the guidelines for penalties for violations of Section

475.25(1), Florida Statutes. Pursuant to that rule the penalty

for violations of Subsections (e) and (m) range from an

administrative fine and suspension to revocation of the license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Department of Business and

Professional Regulation, Division of Real Estate, enter a final

order revoking Respondent's license.

DONE AND ENTERED this 15th day of December, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

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 15th day of December, 1999.

COPIES FURNISHED:

Nancy P. Campiglia, Esquire

Department of Business and

Professional Regulation

Division of Real Estate

Post O ffice Box 1900

Orlando, Florida 32802-1900

Thomas Payne, Esquire

3780 West Flagler Street

Miami, Florida 33134

Herbert S. Fecker, Division Director

Division of Real Estate

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399

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.