STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK KING, Florida Real Estate ) Commission, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1775

)

GORDON I. PAGE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice at the Winter Haven Courthouse, 551 Third Street, N.W., Winter Haven, Florida, at 9:00 a.m. on March 12, 1976, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This matter arose upon the Notice to Show Cause and Administrative Complaint filed by the Florida Real Estate Commission against Gordon I. Page alleging that Gordon I. Page had concealed the fact that he had been arrested for passing worthless bank checks, assault and battery, family offense and traffic offenses and had thereby obtained his real estate salesman's license and real estate salesman-broker's license by concealment misrepresentation or fraud contrary to Section 475.25(2), F.S. Gordon I. Page petitioned for a formal hearing and the Florida Real Estate Commission referred the cause to the Division of Administrative Hearings to conduct the formal hearing.

APPEARANCES

For Petitioner: Charles Felix, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Gordon I. Page, represented himself

FINDINGS OF FACT

1. The parties stipulated to the facts alleged in paragraphs 1, 2, 3 and 4 of Count I of the Administrative Complaint, and to the facts alleged in paragraphs 1, 2, 3 and 4 of Count II, and the fact of the arrests as set forth in paragraphs 5 of Count I and Count II.

   
   

2. The evidence indicates that Respondent applied for a Florida Real Estate Salesman's License on January 20, 1973, and thereon replied in answer to question 9, "Yes. Arrested for speeding by State Road Patrol. Do not have records. Occurrence over five years ago." On his January 15, 1975 application, Page responded to question 6, "Yes, traffic offenses."

3. With regard to the application dated January 20, 1973, which is the subject of Count I, the evidence of arrest for traffic offenses reveals Page was arrested on April 6, 1969; October 8, 1970; and October 30, 1971. Obviously, Page could not report his arrest in January 2, 1973 on his application filed six months prior. Although Page indicated his arrest had been five years previous to his 1973 application, while in fact the last arrest had been 14 months before, the fact he reported these traffic offenses indicates that he did not seek to conceal these arrests or violate the statute. With regard to January 15, 1975 application, Page again referenced traffic offenses in response to question 6 but did not provide any information regarding any other arrests or charges.

   
   

4. Clearly, the record of arrests for passing worthless bank checks, assault, and a family offense were not reported on either application. Page explained that these checks were issued by him during the period of a divorce and domestic turmoil and that this had resulted in the overdrafts. Each of these charges were dismissed upon restitution and payment of cost.

   
   

5. Page did not explain the nature of the assault and battery charge, however, the record indicates it was dismissed upon nonappearance of the complaining witness. The Hearing Officer further notes that the record presented is not of an arrest but rather of an Information filed by the County

   
   

6. Regarding the family offense, the only records introduced relative to this charge are an Information dated June 15, 1974 and the accompanying order of dismissal which indicates that the Information was improperly filed because the court lacked jurisdiction to consider the offense.

   
   

7. The Hearing Officer finds, based on the facts relating to the traffic offenses, that the Respondent, Page, did not conceal or misrepresent these arrests. Clearly, he referred to traffic arrest or offenses on both his 1973 and 1975 applications. While his references nay have been less complete than one would desire, they evidence no intent to misrepresent or conceal the arrest and were apparently sufficient from the record presented at hearing for the Commission's staff to develop the details relevant to them.

   
   

8. The charges relating to passing worthless bank checks were not reported on the application. Page explained the reason for these arrests at hearing, but offered no explanation of why they were not reported.

   
   

9. The information charging Page with criminal non-support was improper from the outset as indicated in the Order of Dismissal because the court lacked jurisdiction over the subject. It is questionable whether there was an arrest, and the charge was a nullity. This "offense" was obviously related to the domestic problem which Page had had, not a criminal matter.

   
   

   CONCLUSIONS OF LAW

   
   

10. Section 475.17(1), F.S., provides in pertinent part that the applicant must be honest, truthful, trustworthy, of good character and bear a good reputation for fair dealing. This portion of the statute is subsequently amplified by the following provision from subsection (1):

    
    

    "If it shall be made to appear that. . . the applicant has been guilty of conduct or practices in this state or elsewhere, which would have been grounds for revoking or suspending registration

    under this chapter had the applicant then been registered,.

    
    

11. The quoted passage defines what is meant by a person who is honest, truthful, trustworthy, of good character and has a good reputation as one who has not in the past been guilty of an offense for which a registrant could have his license suspended. Section 475.25(1), F.S., sets out the offenses for which a registrant's registration can be suspended. Clearly Page's traffic offenses do not constitute a violation of Section 475.25(1) and thereby create grounds for suspension of his registration. Therefore, these offenses could not constitute grounds for revocation under Section 475.25(2) and 475.17 even if they had been reported.

    
    

12. Section 475.25(2) does not state that a registrant's registration shall be revoked if the applicant lied on his or her application. The section provides that the registration may be revoked if found to have been obtained by fraud, misrepresentation or concealment. The clear meaning of this provision is that a registration may be revoked if the Commission having full knowledge of the circumstances would have denied issuance in the first place. Therefore the information concealed must be material and relevant to issuance and, in short, constitute grounds for initial denial. As stated above, these grounds basically are the same as the grounds for revocation of an existing license.

    
    

13. With regard to the existing facts, the applicant did not conceal the facts of his traffic offenses on either application. While he nay not have given all the desired information, this is not concealment or misrepresentation. The record reveals that he did disclose the fact of these offenses and that the data provided was sufficient for the Commission's staff to develop the actual dates and offenses. However, even if this had been concealed, these arrests would not constitute a basis for revocation and therefore denial of hi registration.

    
    

14. Page was not found guilty of either the assault and battery or non- support. The court dismissed the first charge for failure of the complaining witness to appear and testify. The non-support charge was dismissed because it was a domestic not a criminal matter and the court lacked jurisdiction. In neither case is there a showing that Page was guilty. Therefore, there is no showing as required by Section 475.17(1) that the person is not qualified.

    
    

15. Page explained how he had come to write the bad checks. He testified an it is reflected in the records introduced, that Page paid the court cost and made restitution on the checks in question. However, he did not report the fact of his arrest, and this offense would relate to offenses for which relocation can result as provided in Section 475.25(1). The Hearing Officer finds that the

    12 year period without adverse character information is more relevant to Page's qualifications than the four bad checks he wrote in the early 1960's. Section 475.17(1), F.S., also provides:

    
    

    " .. the applicant shall be deemed not to be qualified, unless, because of lapse of time and subsequent good conduct and reputation. .it shall appear to the commission that the interest of the public and investors will not likely be endangered by the granting of registration."

    
    

16. The legislature obviously considered the possibilities of such occurrences and authorized the Commission to exercise its discretion. It would

appear that the record in this case would amply support the Commission in not aching to revoke Page's license although these offenses nay have been sufficient to deny his application in the first instance.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Commission exercise its discretion and approve Pace's applications for registrant as a salesman and broker-salesman, as it were, nune pro tunc, and take no action against his registrations.

DONE and ORDERED this 23rd day of April, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Charles Felix, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Gordon I. Page c/o Glenn D. Gerke

513 West Central Avenue Winter Haven, Florida 33880

Docket for Case No: 75-001775

Orders for Case No: 75-001775