STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

an agency of the State of )

Florida )

)

Petitioner, )

)

vs. ) CASE NO. 77-784

) P.D. NO. 3190

DOROTHY M. AZAR, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard on August 2, 1977, in the Branch Office of the Florida Real Estate Commission, Courtney Building, Suite 201, 2069 First Street, Fort Myers, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon the Administrative Complaint filed by the Florida Real Estate Commission against Dorothy M. Azar which alleged that Azar had failed to state in response to Question 6 on her application for licensure as a real estate salesman filed on August 27, 1976, that she had been arrested on June 9, 1976; and that by failing to answer Question 6 correctly that Azar had obtained her registration by means of fraud, misrepresentation, or concealment contrary to the provisions of Section 475.25(2), Florida Statutes.

APPEARANCES

For Petitioner: Frederick H. Wilsen, Esquire

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: E. G. Couse, Esquire

2069 First Street, Suite 202 Post Office Drawer 1686

Fort Myers, Florida 33902

ISSUE

Whether Dorothy M. Azar answered Question 6 on her application incorrectly with the intent to obtain her license by fraud, misrepresentation or concealment.

FINDINGS OF FACT

1. Dorothy M. Azar is a registered real estate saleswoman holding License No. 0164341 issued by the Florida Real Estate Commission.

2. Azar applied for licensure initially on June 7, 1976. See Exhibit 1, pages 1 and 2. Azar subsequently reapplied on August 24, 1976. This application was stamped received by the Florida Real Estate Commission on August 27, 1976.

   
   

3. Azar was arrested on June 9, 1976 pursuant to the Information filed by Robert Eagan, State Attorney, Ninth Judicial Circuit, State of Florida, which charged Azar with a violation of Florida Statute 812.021 and alleged that she took, sold or carried away property; to wit: clothing, the property of Robert Kleinmann as custodian and of a value of more than One Hundred Dollars ($100.00) with the intent to permanently deprive Kleinmann of the clothing. This criminal information was received as Exhibit 2.

   
   

4. When Azar completed her second application on August 25, 1976, no action had been taken on the criminal charges pending against her. On or about this date, according to her testimony, she went from Lehigh Acres, Florida, to the Florida Real Estate Commission Offices in Winter Park, Florida, to review the examination which she had taken and failed in July. While there, she filled out her second application, pages 3 and 4 of Exhibit 1. According to her testimony, Azar was very rushed because her review appointment was for only one hour and she had arrived late. She stated that prior to her review she was given an application to fill out and that she did not even read the questions but copied her answers from her first application. She further testified that she had at first copied her old address in Orlando on the second application, correcting it to her new address in Lehigh Acres in the margin of the application. See page 3, Exhibit 1.

   
   

5. On September 8, 1976, the Florida Real Estate Commission made a check of any arrests of Azar as indicated by the annotation on the second application under Question 6. On November 30, 1976, Azar entered a plea of no contest to the charge of attempted grand larceny and adjudication was withheld. See the Court Minutes, Exhibit 3, and the testimony of Azar. On November 15, 1976, the Florida Real Estate Commission issued Azar her license as a registered real estate saleswoman.

   
   

6. The answers to Questions 4 and 5 on the second application filed by Azar differ slightly from the answers given to those questions on her first application.

   
   

7. Although Azar testified that she did not read the questions on the second application but recopied her answers from her first application, the fact that the entries on the second application to Questions 4 and 5 differ from those on the first application indicates that Azar at least read the two questions preceding Question 6. This fact and the content of Question 6 lead to the conclusion that Azar did read Question 6. Further, an arrest on a charge of Grand Larceny within the preceding ninety days would be sufficiently memorable for Azar to recall when prompted by reading Question 6. Having determined, that Azar did in fact read Question 6 and would have remembered her arrest, one must conclude that Azar knowingly did not correctly answer Question 6 and therefore intended to conceal her arrest.

   
   

   CONCLUSIONS OF LAW

   
   

8. Azar is charged with having obtained her registration by fraud, misrepresentation, or concealment contrary to the provisions of Section 475.25(2), Florida Statutes.

9. Section 475.25(2), Florida Statutes, has two elements which must be proven; (1) that the applicant knowingly concealed or misrepresented factual matters to the Florida Real Estate Commission, and (2) that the matters concealed or misrepresented were material to consideration by the Florida Real Estate Commission of the individual's qualifications for licensure to such a degree that had the Florida Real Estate Commission been aware of the true facts the Florida Real Estate Commission could have required the applicant to affirmatively prove his or her qualifications for licensure. When the matters concealed deal with charges pending against an applicant, the Florida Real Estate Commission does not have to present any evidence going to the merits of the charges against the applicant because such a requirement would be contrary to the general rule of law well established in Florida that any applicant carries the burden to prove their qualification for licensure. The very purpose of this portion of Section 475.25(2) is to prevent the applicant from shifting the burden to the Florida Real Estate Commission to prove that they are unqualified by obtaining a license under false pretenses. The fact that the charges were without merit would naturally be an adequate affirmative defense to an allegation based on this portion of Section 475.25(2) because this goes to the materiality of the misrepresentation in obtaining the license. However, the applicant carries the burden of proof of that affirmative defense in the same way the applicant would have had to prove his or her qualifications had they initially revealed the information and the Florida Real Estate Commission had given notice of its denial of the right of licensure.

   
   

10. In the instant case, Azar, as determined above, did knowingly conceal the fact she had been arrested. The nature of the charges pending against Azar were such that it cast doubts upon her qualifications for licensure because the offense was a felony and dealt with larceny of property. Had the Florida Real Estate Commission known about the charge pending against her, it could have required her to affirmatively prove her qualification. By concealing her arrest Azar circumvented that right of the Florida Real Estate Commission, and therefore there has been a prima facie showing that Azar obtained her license by concealment Azar presented no evidence that there was no substance to the charges, and that the arrest and its concealment were therefore not material to her licensure. On the contrary, she testified that she plead guilty to attempted grand larceny. Clearly, the concealment was material to consideration of her licensure by the Florida Real Estate Commission. Having determined that the Florida Real Estate Commission has factually proved the two elements of the offense, the Florida Real Estate Commission has shown that Azar violated the provisions of Section 475.25(2), Florida Statutes.

RECOMMENDATION

The Hearing Officer, based upon the foregoing Findings of Fact and Conclusions of Law, recommends that the Florida Real Estate Commission revoke the registration of Dorothy N. Azar as a registered real estate salesman with leave for Azar to immediately refile her application.

DONE and ORDERED this 12th day of August, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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 32789

E. G. Couse, Esquire

2069 First Street, Suite 202 Post Office Drawer 1686

Fort Myers, Florida 33902

Docket for Case No: 77-000784

Orders for Case No: 77-000784