STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 77-666

) SHARON LEE (BLACKBURN) JARVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on May 16, 1977, in Ft. Lauderdale, Florida.

APPEARANCES 1/

For Petitioner: Charles E. Felix, Esquire

Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

The Florida Real Estate Commission, through its representative, Upton B. Mackall, filed an administrative complaint against Sharon Lee (Blackburn) Jarvis (Defendant hereafter) on February 28, 1977. In Count I of the complaint it is alleged that the Defendant, a licensed real estate salesman, applied for registration as a real estate salesman by execution of a sworn application filed with the Commission on March 4, 1975 which, among other things, inquired of the Defendant the following:

"6. 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, (but not parking, speeding, inspection or traffic signal violations), without regard

to whether convicted, sentenced, pardoned or paroled? ".

Defendant responded to said question by stating that "in 26 years of living I could honestly say I had (sic) never been arrested, either justly of unjustly." The complaint alleges that at the time of execution, Defendant knew or should have known that her answer to said question on her application was incomplete, false and untrue in that she failed to reveal, disclose and fully explain the following charges and arrests, to wit:

(a) An arrest on January 21, 1976, by the City of Ft. Lauderdale Police Department, Broward County, Florida. 2/

By reason thereof, the complaint alleges that the Defendant is guilty of having failed to fully and accurately answer inquiries pertinent to her qualification etc., as set forth in Section 475.17 and 475.18, Florida Statutes, and therefore, Defendant is guilty of having violated Subsection 475.25(1)(d), Florida Statutes. The conclusion is thus alleged that the Defendant is guilty of having obtained her registration by means of fraud etc., in violation of Subsection 475.25(2), Florida Statutes. In Count II it is alleged that the Defendant on or about June 13, 1975, was charged and arrested for the offense of "indecent assault upon a chld" in violation of Section 800.04, Florida Statutes, in the Circuit Court, in an for the 17th Judicial Circuit, Broward County, Florida. It is further alleged that the Defendant entered a plea of nolo contendre to the above charge for which she was placed on probation for a period of six years. By reason thereof, it is alleged that the Defendant is guilty of a crime against the laws of this state involving moral turpitude in violation of Subsection 475.25 (1)(e), Florida Statutes. Based thereon, the Commission seeks to revoke, suspend, or otherwise discipline the Defendant.

FINDINGS OF FACT

Based on my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the exhibits received into evidence, I make the following:

1. The Defendant is a real estate salesman registered with the Commission and currently holds registration certificate number 0151729 (non-active). Defendant applied for registration as a real estate salesman by execution of a sworn application with the Commission on March 4, 1975 and was issued an initial registration certificate as such effective September 29, 1975. In response to the question as to whether or not she had ever been arrested for the commission of any offense against the laws of this state, she responded that "in 26years of living, I could honestly say I had (sic) never been arrested, either justly or unjustly." (See Commission's Exhibit #1). Exhibits introduced and received during the course of the hearing clearly reveal that the Defendant was arrested on January 21, 1975 and charged with engaging in the unlawful practice of massage for a fee or gratuity without a certificate or registration in violation of Section 480.02(1), Florida Statutes; and for the unlawful receipt of a fee for touching or offering to touch the sexual parts of another for the purpose of arousing or gratifying sexual desire. Officer White, a police officer for Broward County was called and credibly testified that the Defendant, Sharon Lee (Blackburn) Jarvis is the same Sharon Lee Blackburn that was arrested on January 21, 1975, and stated that the charges were nolle prosequi because of the Defendant's cooperation with the police on other related charges. Michael H. White, a police officer with the City of Ft. Lauderdale, was called and testified that he arrested the Defendant on June 13, 1975 and charged her (Defendant) for the offense of "indecent assault upon a child". On June 2, 1976 the Defendant entered a plea of nolo contendre to the above offense and was placed on probation for a period of six years. (See Commission's Composite Exhibit #5)

   
   

2. Although Defendant complained that she was not served with copies of the administrative complaint and notice of hearing, evidence reveals that such was mailed to her at her last known address. It was noted that the complaint and notice of hearing which was mailed by the Commission was returned as

   "undeliverable". These documents were mailed to Defendant at her last known address. A registrant is required to immediately notify the Commission of address changes. (Chapter 475.23, Florida Statutes, and Rule 21V-9.01, F.A.C.) This the Defendant failed to do. As an aside, evidence reveals that Defendant received a copy of the notice of hearing sent by the undersigned. Accordingly, Defendant lacks standing to now complain that she did not receive notice of the proceedings herein.

   
   

3. Based on the foregoing findings of fact, I make the following:

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

   
   

5. The parties were noticed pursuant to the notice provisions of Chapters

   120 and 475, Florida Statutes.

   
   

6. The authority of the Commission is derived from Chapter 475, Florida Statutes.

   
   

7. The action of the Defendant, by her failure to reveal, disclose, or otherwise explain the fact that she was charged and arrested by the Ft. Lauderdale Police Department on January 21, 1975, constitutes a violation of Chapter 475.25(1)(d), Florida Statutes, and therefore provides basis for the conclusion that she obtained her registration by means of fraud, misrepresentation and concealment, and thereby violated Subsection 475.25(2), Florida Statutes.

   
   

8. Evidence introduced revealed that the Defendant on June 2, 1976, entered a plea of nolo contendre to the offense of "indecent assault upon a child" and was placed on probation for a period of six years provides the basis for a conclusion that the Defendant is guilty of a crime against the laws of this state involving moral turpitude in violation of Subsection 475.25(1)(e) Florida Statutes, and it is so concluded.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby, RECOMMENDED:

1. That the Defendant's registration with the Florida Real Estate Commission as a real estate salesman be revoked.

RECOMMENDED this 9th day of June, 1977, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

ENDNOTES

1/ Although the Defendant was noticed of the hearing herein, she was not represented by counsel nor did she appear at the hearing.

2/ During the course of the hearing, the undersigned allowed the Commission to amend Subsection (5)(a) of its administrative complaint to read, Case No. R- 74655 and (b) to read an arrest on January 21, 1975.

COPIES FURNISHED:

Charles E. Felix, Esquire Staff Attorney

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

Sharon Lee (Blackburn) Jarvis Post Office Box 513 Hollywood, Florida 33020

Docket for Case No: 77-000666

Orders for Case No: 77-000666