STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION )

(formerly Board of Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 81-2122

)

STEWART SAX, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant notice, the Division of Administrative Hearings, duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on April 28, in Pompano Beach, Florida.

APPEARANCES

For Petitioner: Robert F. Jordan, Esquire

CONRAD, SCHERER & JAMES

Post Office Box 14723

Ft. Lauderdale, Florida 33302

For Respondent: Dewey A.F. Ries, Esquire

215 Northeast Third Street Ft. Lauderdale, Florida 33301

Whether or not the Respondent, Stewart Sax, failed to truthfully answer all questions submitted on his application for licensure as a real estate salesman in violation of Chapter 475.17(1), Florida Statutes (1979), and if so, whether he obtained his license as a real estate salesman by means of fraud, misrepresentation and concealment in violation of Section 475.25(1)(m), Florida Statutes (1979).

FINDINGS OF FACT

1. Based upon my observation of Respondent, and his testimony during the proceeding herein, the documentary evidence received, including a prehearing stipulation executed by counsel for the parties and the entire record compiled herein, the following relevant facts 1/ are found.

   
   

2. Respondent, Stewart Sax, is a real estate salesman who holds License No. 0347241. Respondent is presently employed by Choice Rentals and Realty Corporation, 3365 North Federal Highway, Fort Lauderdale, Florida.

   
   

3. The prosecution of this matter was initiated by Petitioner against Respondent based on an Administrative Complaint filed herein, signed August 3, 1981.

   
   

4. On July 24, 1980, Respondent submitted an application for licensure with the Petitioner. In connection therewith, Respondent answered question No. 6 in the negative by asserting "No." That question reads in total:

   
   

   Have you ever been arrested for, or charged with commission of an offense against the laws of any municipality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violation), without regard to whether convicted, sentenced, pardoned or paroled?

   
   

5. Respondent was first arrested on April 21, 1972, when he was charged with credit card theft in Atlanta, Georgia. At this time, he was approximately

   22 years old and was a student at Emory University in Atlanta, Georgia. Respondent pled nolo contendere to the charges and received three years probation and a $500.00 fine based upon this plea. Respondent contends that the credit card belonged to a girl friend's mother and he initially had the right to use that credit card.

   
   

6. Respondent was next arrested on January 25, 1974, when he was arrested for credit card theft, public indecency and public drunkenness in Atlanta. The charges on the first two counts were dismissed and Respondent received a 30-day suspended sentence on the public drunkenness charge.

   
   

7. Respondent was next arrested on July 24, 1980, in Fort Lauderdale, and was charged with grand larceny and issuing a worthless check. The worthless check charge was nolle prosequi and the grand larceny charge was reduced to petty theft, to which Respondent pled no contest. Respondent was placed on probation for six (6) months; he paid $50.00 court costs and adjudication of guilt was withheld.

   
   

8. On July 24, 1980, Respondent was again arrested for driving while intoxicated and with an expired driver's license. No information was issued on the driving while intoxicated charge and Respondent pled no contest to the expired driver's license charge. He paid $25.00 for court costs and adjudication was withheld.

   
   

9. Finally, Respondent was arrested on July 30, 1980, and charged with prowling in Fort Lauderdale, Florida. These charges were dismissed.

10. Respondent contends that he was under a great deal of pressure when he submitted his application for licensure and was of the opinion, based on representations of his former counsel, that he did not have to reveal these matters on applications, etc.; that these matters were dropped, and would not follow him in the future. (Prehearing Stipulation)

    
    

11. As noted above, the matter was presented based upon a prehearing stipulation, prepared by counsel for the parties whereby Respondent admitted each of the allegations as contained in the Administrative Complaint with explanations for each allegation.

    
    

12. Evidence presented at the hearing indicated that, except for the Public drunkenness charge, all remaining charges were either nolle prosequi, dismissed without any information being filed or adjudication was withheld and sentences were probated.

    
    

13. Respondent has enjoyed success in his field as a real estate salesman since he has been licensed. Respondent as far as the record reveals, has not had any disciplinary charges brought against him since he has been licensed as a real estate salesman. Other professionals in the area have a high regard for Petitioner, both personally and professionally as a real estate salesman.

    
    

14. Respondent is a highly intelligent real estate salesman who, it can be assumed, understood the application for licensure which he executed to become a real estate salesman. Based on the admissions contained in the prehearing stipulation and Respondent's testimony, his failure to truthfully answer all questions on his application, he (Respondent) violated the provisions of Chapter 475.17(1), Florida Statutes.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

    
    

16. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

17. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

    
    

18. Respondent, as a licensed real estate salesman, is subject to the disciplinary provisions of Chapter 475, Florida Statutes.

    
    

19. Based on the evidence presented herein, competent and substantial evidence was offered to establish that the Respondent failed to truthfully answer all questions on his application for licensure as a real estate salesman. The application which was submitted to Petitioner was executed under penalty of perjury. As such, Respondent violated Section 475.17(1), Florida Statutes (1979). Based thereon, Respondent is guilty of having obtained the issuance of his real estate license by means of misrepresentation and concealment within the meaning of Section 475.25(1)(m), Florida Statutes (1979)

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

1. That Respondent's real estate License No. 0347241 be REVOKED.

   
   

2. That Respondent be afforded an opportunity to reapply for a license as a real estate salesman and that pending a decision by the Board on Respondent's reapplication for licensure, the Board spend the revocation referred to in the Recommendation above.

RECOMMENDED this 25th day of May, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of May, 1982.

ENDNOTE

1/ The parties were afforded leave to submit post-hearing memoranda supportive of their positions. Memoranda were received from the parties on May 10, 1982, and were considered by me in preparation of this Recommended Order. To the extent that said proposed findings and conclusions are not incorporated in this Recommended Order, they were deemed irrelevant, immaterial or not otherwise supported by the evidence of record.

COPIES FURNISHED:

Robert F. Jordan, Esquire

Post Office Box 14723 May, 1982. Ft. Lauderdale, Florida 32202

Dewey A.F. Ries, Esquire

215 N.E. Third Street

Ft. Lauderdale, Florida 33301

Fred Wilsen, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

C.B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 81-002122

Orders for Case No: 81-002122