STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION )

)

Petitioner, )

)

vs. ) CASE NO. 83-3756

)

LINDA HATHAWAY CHEPULT )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on April 19, 1984. The Division of Administrative Hearings received the transcript of proceedings on May 24, 1984.

Nobody appeared for respondent and she was not present herself. Petitioner appeared through counsel:

Fred Langford, Esquire

400 West Robinson Street Orlando, Florida 32301

By administrative complaint filed September 21, 1983, petitioner alleged that respondent holds a real estate salesman's license, No. 0405418, but that she obtained her license originally on an application in which she "knowingly and intentionally concealed and failed to explain numerous arrests by the Escambia County Sheriff's Office, Florida,....which arrests occurred on October 29, 1966, January 18, 1978, November 17, 1978, February 2, 1979, April 24, 1979,

June 24, 1982, October 5, 1982 and December 21, 1982....[and] February 2, 1983 The administrative complaint alleges that respondent "did not and does not possess the necessary qualifications of being honest, truthful, trustworthy, and of good character and good reputation for fair dealing as required by Subsection 475.17(1), Florida Statutes"; and that respondent "is guilty of having obtained licensure by means of fraud, misrepresentation and concealment in violation of Subsection 475.25(1)(m), Florida Statutes."

FINDINGS OF FACT

1. On March 14, 1983, petitioner received respondent's application for licensure as a real estate salesman, dated March 9, 1983. Petitioner's Exhibit No. 1. Respondent Linda K. Hathaway Chepult signed the notarized application just below the printed statement attesting that all her "answers....are true and correct, and are as complete as h[er] knowledge, information and records permit, without any mental reservations whatsoever." Petitioner's Exhibit No. 1. Among the questions on the form application was 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....without regard to whether convicted, sentenced, pardoned or paroled?

   
   

   Petitioner's Exhibit No. 1.

   
   

   To this question, Ms. Chepult replied, "Yes." There followed on the form these directions: "If yes, state details including the outcome in full." In response to this, respondent stated:

   
   

   A check was returned on my checking account in 1980 during a time that we were moving. Because of the moving notification was not forwarded nor was I notified by mail or telephone by the company to whom the check was written. I went to the court on the charge in July, 1981; Restitution had been made and a[d]judication of guilt was withheld.

   
   

   Petitioner's Exhibit No. 1.

   
   

   On the strength of this application, petitioner granted respondent a real estate salesman's license, No. 0405418, effective June 8, 1983. Petitioner's Exhibit No. 1.

   
   

2. At the time Ms. Chepult executed the affidavit that her answers were correct and complete, she had been arrested not once, as she stated, but numerous times. She had been named as a defendant in criminal proceedings no less than 31 times, between January of 1978 and October of 1982. She was arrested on October 5, 1982, on at least four separate bad check charges, Case Nos. 82-3527, 82-7219, 83-8303 and 82-8304 (Escambia Co. Ct.). The overwhelming number of prosecutions and numerous arrests require the conclusion that respondent's reticence in answering Question Six was a deliberate misrepresentation.

   
   

   CONCLUSIONS OF LAW

   
   

3. Petitioner is authorized to revoke a license upon proof that a licensee "obtained a license by means of fraud, misrepresentation, or concealment." Section 475.25(1)(m), Florida Statutes (1983). The concealment with which respondent is charged is clearly material to her qualifications for licensure. Section 475.17, Florida Statutes (1983).

   
   

4. In a matter as grave as license revocation proceedings, the duty allegedly breached by the licensee must appear clearly from applicable statutes or rules or have a "substantial basis," Bowling v. Department of Insurance, 394 So.2d 165, 173 (Fla. 1st DCA 1981), in the evidence. Disciplinary licensing proceedings like the present case are potentially license revocation proceedings, even in the absence of a recommendation of revocation, since the penalty for the infraction alleged lies within the discretion of the disciplining authority, if allegations of misconduct are established at a hearing. Florida Real Estate Commission v. Webb, 367 So.2d 201 (Fla. 1979). License revocation proceedings have been said to be "`penal' in nature." State

   ex rel. Vining v. Florida Real Estate Commission, 281 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1984); Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980).

   
   

5. At the formal hearing, petitioner had the burden to show by clear and convincing evidence that respondent committed the acts alleged in the administrative complaint. Walker v. State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970)

   
   

6. Although the evidence in the present case was documentary only, it went unrebutted. Petitioner did not prove every arrest alleged in the administrative complaint, but did show that respondent had been arrested several times, including on at least one of the dates pleaded. This was sufficient to prove the gravamen of petitioner's complaint, viz., that respondent made material misrepresentations on her application for a real estate salesman's license.

It is, accordingly, RECOMMENDED:

That petitioner revoke respondent's license as a real estate salesman. DONE and ENTERED this 22nd day of June, 1984, in Tallahassee, Florida.

ROBERT T. BENTON II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1984.

COPIES FURNISHED:

Fred Langford, Esquire

Department of Professional Regulation Florida Real Estate Commission

400 West Robinson Street

P.O. Box 1900

Orlando, Florida 32801

Linda Hathaway Chepult 1401 E. DeSoto Street Pensacola, Florida 32501

Harold Huff, Director Department of Professional Regulation

Division of Real Estate

400 West Robinson Street

P.O. Box 1900

Orlando, Florida 32801

Docket for Case No: 83-003756

Orders for Case No: 83-003756