STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) GEORGE A. ILLI, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1712

)

JOSEPH M. BRYANT, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on February 15, 1977, at Dade City, Florida, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789 For Respondent: None

ISSUE

Whether Respondent obtained his registration as a real estate salesman by means of fraud, misrepresentation, or concealment.

On October 14, 1976, Petitioner's Administrative Complaint was sent by registered mail to the Respondent at his designated address: Post Office Box 805, U.S. Highway 52 West, Dade City, Florida 33525. A return receipt signed by the Respondent showed date of delivery as October 26, 1976. (Exhibit 1) However, Respondent did not execute and return an enclosed Election of Rights form that accompanied the Administrative Complaint wherein he could have indicated his desires as to an administrative hearing. Nevertheless, Petitioner requested that a Hearing Officer be appointed in the matter and issued a Notice of Hearing to Respondent at the same address by certified mail on January 19, 1977. This correspondence was returned by postal authorities as "Unclaimed" (Exhibit 2). An Order of the Hearing Officer changing the hour set for the hearing from 10:00 a.m. to 2:00 p.m. on February 15, 1977 was mailed to the Respondent on February 7, 1977. However, neither Mr. Bryant nor any representative in his behalf appeared at the hearing on February 15, 1977. It being determined that proper notice had been provided to the Respondent in accordance with Section 475.40 and Chapter 120, Florida Statutes, the Petitioner presented its evidence in uncontested proceedings.

FINDINGS OF FACT

1. Respondent filed his application for registration as a real estate salesman with Petitioner on October 10, 1972. He completed Question 9 therein in the following manner:

   
   

   "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted? Yes

   
   

   If yes, state details in full. Yes - See back of sheet"

   On the back of the application page, Respondent listed the following: "Have 2 traffic tickets, Pasco County, Dade

   City, Fla. - County Court

   1. Improper Passing

   2. Out of Date inspection sticker"

      
      

2. Respondent was issued his registration as a salesman by Petitioner, effective January 29, 1973, Certificate Number 20527. The certificate was renumbered 0010908 when reissued in 1974 and 1975. It was issued again as "Non Active Salesman" on April 19, 1976 with expiration date March 31, 1978. (Composite Exhibit 3)

   
   

3. Records of the Sheriff, Pasco County, show that the Respondent was arrested on six different occasions during the years 1961 to 1970. Five of these arrests were based on worthless check charges and one arrest was for failure to appear, as set forth in the Administrative Complaint of Petitioner. (Exhibit 4, Administrative Complaint)

   
   

4. Respondent was charged on October 23, 1970 on an information of the State Attorney for the Sixth Judicial Circuit of Florida in and for Pasco County, Case Number 2010, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. He was also charged on October 23, 1970 in the same Judicial Circuit, Case Number 2011, for "Obtaining property in return for worthless check" in violation of Chapter 832, Florida Statutes. (Exhibit 5)

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner seeks to take adverse action with regard to Respondent's registration as a non-active real estate salesman by reason of having failed to fully and accurately answer inquiries pertinent to his qualifications of honesty, truthfulness, trustworthiness, good character, and good reputation for fair dealing in accordance with Sections 475.17 and 475.18, Florida Statutes, and that therefore he is guilty of having violated subsection 475.25(1)(d), Florida Statutes, by having obtained his registration by means of fraud, misrepresentation, and concealment; and that, therefore, he is guilty of having violated subsection 475.25(2), Florida Statutes. Pertinent portions of the cited statutory provisions are as follow:

   "475.17 Qualifications of applicants for registration.

   (1) An applicant for registration . . . shall be required to make it appear that he

   is . . . honest, truthful, trustworthy, of good character, and that he bears a good reputation for fair dealing . . . . 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, the applicant shall be deemed not to be qualified, unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient it shall appear to the commission that the interest of the public and investors will not likely be endangered by the granting of registration. . . .

   
   

   475.18 Proceedings upon application for registration.

   (1) . . . If, from the application filed, . . . it shall not affirmatively appear that the applicant possesses the

   necessary . . . . character . . . required by this chapter, the commission shall permit reasonable amendments, if offered by the applicant, and if the applicant shall not finally make it affirmatively appear that he is so qualified, the commission may finally deny the application with prejudice.

   
   

   475.25 Grounds for revocation or suspension.

   1. The registration of a registrant may be suspended for a period not exceeding 2 years, or until compliance with a lawful order imposed in the final order of suspension, or both, upon a finding of facts showing that the registrant has:

      * * *

      (d) Violated any of the provisions of this chapter, or any lawful order, rule or regulation made or issued under the provisions of this chapter; . . .

      * * *

   2. The registration of a registrant shall be revoked if such registration, or a certificate issued thereon, is found to have been obtained by the registrant by means of fraud, misrepresentation, or

   concealment. . ."

6. The proof adduced by Petitioner establishes that the Respondent failed to list his prior multiple arrests and charges in answering Question 9 of his Application for Registration. By such omission, it reasonably may be inferred that he intentionally concealed such information from the Petitioner to induce the issuance of registration. The remaining question is whether or not Petitioner would have issued the registration certificate if it had known of his prior arrests. Although it is impossible to "second-guess" how the Real Estate Commission would have acted upon Respondent's application under such circumstances, it is clear that Respondent misled the Commission as to his honesty, truthfulness and character. The offenses of which he was charged involved moral turpitude and fraudulent or dishonest dealing in the issuance of worthless checks. No competent evidence was presented at the hearing that Respondent was guilty of or had been convicted of such offenses, but lack of convictions or failure to prosecute would not necessarily have precluded an inquiry by the Commission into the circumstances of the charges to determine Respondent's culpability. By his concealment of the charges, the Commission was unable to make such inquiry and determine there from if the applicant possessed the requisite good character required for registration as indicated in subsections 475.17 and 475.18. It therefore is concluded that Respondent obtained his registration by means of concealment and accordingly, revocation of his license is required under subsection 475.25(2)

RECOMMENDATION

That the registration of Respondent Joseph M. Bryant as a non-active real estate salesman be revoked, pursuant to subsection 475.25(2), Florida Statutes.

DONE and ENTERED this 24th day of February, 1977 in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frederick H. Wilsen, Esquire Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32389

Mr. Joseph M. Bryant Post Office Box 805

U.S. Highway 52 West Dade City, Florida 33525

Docket for Case No: 76-001712

Orders for Case No: 76-001712