STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 86-2162

)

DAVID E. NELSON, )

)

Respondent, )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before, William R. Cave, Hearing Officer with the Division of Administrative Hearings on September 8, 1986 in Tallahassee, Florida. The issue for determination is whether the action taken by the Supreme Court of Wisconsin in response to a complaint filed by the Wisconsin Board of Attorney's Professional Responsibility was such that the same required disclosure to the Florida Real Estate Commission in response to question 13(a) on the Application For Licensure as a Real Estate Broker for the State of Florida.

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

For Respondent: David E. Nelson, Pro Se

2701 Vasser Road

Post Office Box 13503 Tallahassee, Florida 32317

By Administrative Complaint dated April 23, 1986 and filed with the Division of Administrative Hearings on June 12, 1986, Petitioner seeks to revoke, spend or otherwise discipline the license of David E. Nelson as a real estate broker-salesman in the State of Florida.

As grounds therefor, it is alleged that Respondent's failure to disclose the suspension, and eventual revocation, of his license to practice law in the State of Wisconsin by the Supreme Court of Wisconsin was a violation of Section 475.25(1)(b) & (m), Florida Statutes.

At the beginning of the hearing, Respondent filed a pleading entitled "Compliance with order by Respondent" and on the basis of that pleading brought a ore tenus motion for dismissal before the undersigned. After hearing argument of counsel and reviewing the record in this cause the Respondent's Motion To Dismiss was DENIED and the matter proceeded to hearing.

Neither party presented any witnesses. Petitioner's Exhibits 1-5 were received into evidence. Exhibits presented by Respondent were determined to be the same as those already received into evidence as Petitioner's exhibits and, therefore, Respondent withdrew those exhibits.

The parties submitted post-hearing Proposed Findings of Fact. A ruling has been made on each proposed finding of fact as reflected in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Upon consideration of the documentary evidence adduced at the hearing, the following relevant facts were found:

1. At all times relevant hereto, Respondent was licensed as a real estate broker or salesman in the State of Florida having been issued license No. 0402589 in accordance with Chapter 475, Florida Statutes.

   
   

2. The last license issued was as a broker-salesman, 2701 Vasser Road, Tallahassee, Florida 32308. Initially, Respondent was licensed as a real estate salesman effective April 21, 1983.

   
   

3. On July 9, 1982, a complaint was filed with the Wisconsin Supreme Court against the Respondent by the Wisconsin Board of Professional Responsibility (Board) alleging that Respondent had engaged in dishonesty, fraud, deceit, misrepresentation, unprofessional conduct, had filed a false grievance, and had responded falsely to questions from the Board, in violation of *SCR 20.04, 20.04(4). 20128 and 22.07(2). The court then referred the matter to a referee pursuant to SCR 21.09(4).

   
   

4. On January 21, 1983 the Respondent and the counsel for the Board entered into a stipulation wherein Respondent stipulated that: (a) his multiple representation of the corporation and individuals in connection with negotiation for, and sale of, the property by the corporation constituted a clear conflict of interest, in violation of SCR 20.24 and 20.28; (b) that his assertion in his opinion on title that the condominium documents met applicable state law constituted misrepresentation, in violation of SCR 20.04(4); (c) that his failure to advise purchasers of the corporation's financial problems constituted misrepresentation, in violation of SCR 20.04(4); (d) that his signing of the affidavit concerning the accuracy of the closing statement and distributing the closing statement constituted misrepresentation, in violation of SCR 20.04(4); and (e) that his response to the Board, in connection with the grievance, that he was not aware at the time of the purchase of any financial problems of the corporation was false and constituted misrepresentation, in violation of SCR 22.07(2).

   
   

5. The referee filed his report with the Wisconsin Supreme Court on January 27, 1983, in which he made his findings of fact and conclusions of law consistent with the terms of the stipulation and recommended that Respondent's license to practice law be suspended for a period of sixty (60) days and that he be required to pay $2,500 toward costs and fees incurred.

6. On April 27, 1983 the Wisconsin Supreme Court entered its order adopting the findings, conclusions and recommendation of the referee, with the exception that the Respondent be held liable for payment of the total costs of the disciplinary proceedings.

   
   

7. In their briefs filed with court on the appropriateness of the recommended discipline to the professional misconduct, both parties noted that Respondent was cooperative in making his records available to the Board, that no trust account errors were found, that there was no conversion of client property, and that there had been no prior disciplinary actions against the Respondent.

   
   

8. On July 21, 1983, the Wisconsin Supreme Court entered an Order extending the time until September 30, 1983 for Respondent to pay the costs ordered in its Order of April 26, 1983 or have his license to practice law revoked.

   
   

9. On November 16, 1983, the Wisconsin Supreme Count entered its Order revoking Respondent's license to practice law in the State of Wisconsin for failure to comply with the Court's Order of July 21, 1983 extending the time for payment of costs in the disciplinary action.

   
   

10. On Respondent's application for licensure as a real estate broker dated October 18, 1984 and filed with Petitioner on October 22, 1984, Respondent answered "no" to question 13(a) on the application which is as follows:

    
    

    Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended, in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or, is any proceeding pending? (emphasis supplied)

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1985).

    
    

12. The alleged misconduct of which Respondent is accused purportedly violates Section 475.25(1)(b) and (m), Florida Statutes and in pertinent part is quoted below:

    
    

    1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may suspend a licensure or permit for a period not exceeding 10 years; may revoke a license or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issued a reprimand, or any or all of the foregoing, if it finds that the licensee, permittee, or applicant:

       * * *

       (b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or devices, culpable negligence, or breach of trust in any business transaction in this state or any other state, nation, or territory....

       * * *

       (m) Has obtained a license by means of fraud, misrepresentation, or concealment.

       
       

13. In disciplinary proceedings, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino

    v. Department of Health and Rehabilitative Services, 348 so.2d 349 (l DCA Fla. 1977). The Petitioner has failed to meet its burden.

    
    

14. Petitioner contends that the suspension of Respondent's license to practice law in the State of Wisconsin for misrepresentation in violation of certain rules of the Wisconsin Supreme Court and subsequent revocation for failure to pay the costs of disciplinary action required an affirmative answer by the Respondent to the question of whether his license had been suspended or revoked upon grounds of fraudulent or dishonest dealing or violation of law, or otherwise Respondent would be in violation of Section 475.25(1)(b) and (m), Florida Statutes. There has been no showing by the Petitioner that Respondent's license to practice law in Wisconsin was revoked, annulled or suspended upon grounds of fraudulent or dishonest dealing. Furthermore, there has been no showing that Respondent's violation of the rules of the Wisconsin Supreme Court amounted to a "violation of law" as contemplated by question 13(a) of Petitioner's application.

    
    

15. Although it is questionable whether Petitioner has alleged a violation of Section 475.25(1)(b), Florida Statutes, based on Respondent's actions which resulted in a violation of the rules of the Wisconsin Supreme Court independent of Respondent's failure to divulge such information in his answer to question 13(a) of Petitioner's application, the record lacks the substantial competent evidence necessary to support such an allegation.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that Respondent be found not guilty of the violations charged in the Administrative Complaint and that the Administrative Complaint be DISMISSED.

Respectfully submitted and entered this 22nd day of October, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 22nd day of October, 1986.

ENDNOTE

1/ The record is not clear, but apparently these references are to rules of the Wisconsin Supreme Court governing the conduct of attorneys in that state.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2162

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Covered in the Conclusions of Law.

2. Adopted in Finding of Fact 1.

3. Adopted in Finding of Fact 2.

4. Adopted in Finding of Fact 3 as modified.

5. Adopted in Finding of Fact 6 as modified.

6. Adopted in Finding of Fact 8.

7. Adopted in Finding of Fact 9.

8. Adopted in Finding of Fact 10.

9. Adopted in Finding of Fact 10.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 10.

2. Adopted in Finding of Fact 10.

3. Adopted in Finding of Fact 10.

4. Adopted in Findings of Facts 5 and 6.

5. Adopted in Findings of Fact 4, 5, and 6.

6. Adopted in Finding of Fact 7.

7. Adopted in Findings of Fact 6 and 8.

8. Adopted in Finding of Fact 9.

9. Adopted in Finding of Fact 9.

10. Adopted in Finding of Fact 3.

COPIES FURNISHED:

Harold Huff, Executive Director Division of Real Estate

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

James H. Gillis, Esquire

Department of Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

David E. Nelson, Pro Se 2701 Vasser Road

Post Office Box 13503 Tallahassee, Florida 32317

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE

Petitioner,

vs. CASE NO. 0151931

DOAH NO. 86-2162

DAVID E. NELSON

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on December 2, 1986 to issue a Final Order.

Hearing Officer William Cave of the Division of Administrative Hearings presided over a formal hearing on September 8, 1986. On October 22, 1986, he issued a Recommended Order, attached as Exhibit A. On October 27, 1986, Petitioner filed Exceptions to the Recommended Order, which are accepted and made part of this record as Exhibit B. With regard to the Recommended Order, the Florida Real Estate Commission adopts the Findings of Fact but rejects the Conclusions of Law, as they are inconsistent with the Exceptions accepted.

As to the Recommendation, after a complete review of the record, the Florida Real Estate Commission hereby finds the Respondent guilty of the violations as alleged by the Administrative Complaint, which is attached hereto as Exhibit C and made a part hereof, and ORDERS that the real estate license of the Respondent be revoked. In further support of this increase in penalty, the Florida Real Estate Commission would cite the disciplinary action taken by the

Wisconsin Supreme Court in Case No. 82-1299-D and Respondent's application for licensure, both of which are part of the official record.

This Order shall be effective 30 days from the date of filing with the Clerk of the Department of Professional Regulation. This Order shall be appealable to the District Court of Appeal within 30 days from the date of filing.

DONE AND ORDERED this 2nd day of December 1986 in Orlando, Florida.

Harold R. Huff, Director

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: David Nelson, Box 13503, Tallahassee, Florida 32317; to Hearing Officer William Cave, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Fl 32301; and to James Gillis, Esq., Division of Real Estate, PO Box 1900, Orlando, Fl 32802, this 11th day of December, 1986.

Harold R. Huff

Docket for Case No: 86-002162

Orders for Case No: 86-002162