STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0448

)

FRIDA KOREN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 17, 1990, at Boca Raton, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: James H. Gillis, Esquire

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

For Respondent: Dean J. Trantalis, Esquire

Arvida Parkway Center 7900 Glades Road

Boca Raton, Florida 33434 STATEMENT OF THE ISSUES

This is a license discipline case in which the Respondent has been charged in a one-count Administrative Complaint with having violated Section 475.25(1)(m), Florida Statutes, by means of fraud, misrepresentation, or concealment in her application for licensure.

PRELIMINARY STATEMENT

At the formal hearing in this case the Petitioner presented the testimony of the Respondent and offered four exhibits, all of which were received in evidence. The Respondent did not offer any additional evidence other than her testimony on cross-examination. At the conclusion of the hearing the parties requested, and were granted, twenty days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the hearing was filed with the Hearing Officer on June 19, 1990. Thereafter, both parties filed proposed recommended orders containing proposed findings of fact

and conclusions of law. The findings of fact proposed by the parties are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent is now and has been since about September 9, 1988, a licensed real estate salesman in the State of Florida. She was issued license number 0523257. The last license issued was as a salesman, in care of Hammocks Properties, Inc., 9290 Hammocks Boulevard, #404, Miami, Florida 33196, with a home address of 7390 Northwest 48th Street, Lauderhill, Florida 33319-3401, listed with the Florida Real Estate Commission as of April 10, 1990.

   
   

2. Prior to obtaining her initial real estate salesman's license, the Respondent filed an application for licensure as a real estate salesman. In that application the Respondent represented that all the answers and statements in the application were true and correct, and as complete as her knowledge, information, and records permit, without any evasions or mental reservations whatsoever.

   
   

3. Question 6 on the application form read as follows: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" The Respondent's answer was, "Yes."

   
   

4. The second part of Question 6 read as follows: "If you answered "Yes," please state the details including dates and outcome in full. (Use separate sheet if necessary.)" The Respondent's answer to this part of Question 6 was as follows: "I pleaded guilty to a third degree conspiracy, in 1982 in New Jersey involving an insurance claim."

   
   

5. By letter dated February 3, 1988, Ms. Ruth Clayton, Supervisor of Application Certification, wrote to the Respondent seeking more details regarding the Respondent's answer to Question 6. By means of an undated letter, which was received by the Florida Real Estate Commission on February 17, 1988, the Respondent replied to Ms. Clayton's further inquiry about her answer to Question 6 on the application.

   
   

6. The letter requesting clarification asked the following specific questions: "What was involved? Was it monies, etc? If a monetary value was involved advise us of the value. What was the court's disposition of the matter? Are you on any type of probation or parole?"

7. The Respondent's letter of reply read as follows, in material part: I am replying to your letter of

   February 3, 1988 with regards to question #6. I was a part owner of a property in New Jersey in 1982 that was damaged. I did not commit any crime, did not make an insurance claim, and received no monetary gain. I was advised by the police without an attorney present to plead guilty to a third degree crime as part of a plea-bargain. This was to save my family from the strain, embarrassment, and expense of a lengthy trial. There was to be no trial and no punishment. I was placed in an Intensive

   Supervision Program for one year in which my only restriction was not to leave the state of New Jersey without permission. I am not currently, nor was I ever on any type of probation or parole.

   This is a matter which happened in 1982 in which I signed a document against my interest without knowing the consequences. I was never involved in a criminal matter before, nor after till this date. I am a moral, ethical, law abiding person and have raised five beautiful children. I have been in my own business for the past fifteen years and have never been involved in any litigation.

   
   

8. On March 14, 1983, the Grand Jury in Monmouth County, New Jersey, issued a fourteen-count indictment against Frida Koren and others. The indictment alleged that the defendants had committed various crimes in the course of a criminal scheme to set fire to a house owned by the Respondent and her husband. Four of the fourteen courts alleged criminal conduct by the Respondent. On May 12, 1983, the Respondent retracted a plea of not guilty to all counts and entered a plea of guilty to Count 2 of the indictment. The essence of Count 2 was an allegation that the Respondent and the other defendants "... did commit the crime of conspiracy in that they unlawfully agreed with each other to commit the crime of arson, with the purpose of promoting or facilitating its commission...." The caption to Count 2 describes it as a "third degree crime."

   
   

9. On October 28, 1983, the Respondent was sentenced to a prison term of 5 years with a minimum parole ineligibility of 2.5 years. By order dated April 17, 1984, the sentence was modified to delete the parole ineligibility clause and to add a fine of $7,500.00. On June 25, 1984, the Respondent was released into the Intensive Supervision Program for a trial period. On January 11, 1985, the Respondent was resentenced into the Intensive Supervision Program for 5 years. By subsequent order, the Respondent was discharged from supervision of the Intensive Supervision Program as of August 9, 1985.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

11. The applicable statutory provision reads as follows:

    
    

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

       appraiser, registrant, permittee, or applicant:

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

       
       

12. The evidence in this case fails to establish that the Respondent engaged in fraud, misrepresentation, or concealment in the process of obtaining her real estate license. The term "fraud" carries with it notions of deception or trickery, none of which are shown by the record in this case. Similarly, the term "misrepresentation" involves notions of deliberate falsehoods or intentional omissions for the purpose of avoiding or obscuring the truth. And the term "concealment" contemplates some affirmative action to hide or prevent the detection of the truth.

    
    

13. The record establishes that the Respondent omitted some information regarding the disposition of the criminal proceedings in New Jersey. But she did not attempt to conceal any of those matters, and none of the information she provided has been shown to be false or incorrect. The most that can be said is that the information was incomplete. The incompleteness notwithstanding, the Respondent candidly admitted on the original application that she had pled guilty to a conspiracy involving an insurance claim. That candid admission and the further information provided by the Respondent in response to Ms. Clayton's letter are inconsistent with any effort to conceal or misrepresent the facts.

    
    

14. The Petitioner appears to attach particular significance to the statement in the Respondent's clarification letter to the effect that she did not commit any crime, describing that statement as one of several "lies" by the Respondent. The Petitioner did not, however, offer any evidence to prove that the Respondent committed any crime; but proved only that the Respondent was charged with a crime and pled guilty to a crime. The Respondent's statement that she did not commit any crime is not necessarily inconsistent with a guilty plea, especially under the circumstances described in the record, and absent proof that the Respondent committed the crime charged, there is no record basis for concluding that her denial in that regard is false.

RECOMMENDATION

For all of the foregoing reasons, it is RECOMMENDED that the Florida Real Estate Commission issue a final order in this case concluding that the evidence is insufficient to sustain the charge against the Respondent and dismissing the Administrative Complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of September 1990.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-0448

The following are my specific rulings on the proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraph 1: Rejected as constituting a conclusion of

law rather than a proposed finding of fact. (It is an accurate conclusion of law.)

Paragraphs 2, 3, 4, and 5: Accepted.

Paragraphs 6 and 7: Rejected as irrelevant, because there is no issue in this case regarding the Respondent's citizenship.

Paragraphs 8 and 9: Accepted, with some additional facts in the interest of clarity.

Paragraph 10: Rejected as contrary to the greater weight of the evidence.

Findings proposed by Respondent:

The first eight unnumbered paragraphs of findings proposed by the Respondent are accepted.

The remaining unnumbered paragraphs of findings proposed by the Respondent are all rejected as constituting

argument or proposed conclusions of law, rather than proposed findings.

COPIES FURNISHED:

James H. Gillis, Esquire Department of Professional

Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Dean J. Trantalis, Esquire Arvida Parkway Center

7900 Glades Road

Boca Raton, Florida 33434

Darlene F. Keller Division Director Division of Real Estate

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

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

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. 0162199

DOAH NO. 90-0448

FRIDA KOREN,

Respondent.

/

FINAL ORDER

On October 16, 1990, the Florida Real Estate Commission heard this case to issue a Final Order. Hearing Officer Michael Parrish of the Division of Administrative Hearings presided over a formal hearing on May 17, 1990. On September 4, 1990, he issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

Petitioner filed Exceptions to the Recommended Order. A copy of said Exceptions is attached hereto as Exhibit B and made a part hereof. The Petitioner took exception to the Hearing Officers Findings of Fact, Paragraphs 4 and 7, stating that the Hearing Officer failed to find Respondents answers on the application inaccurate and incomplete. The Petitioner also took exception to the Hearing Officers Conclusions of Law, stating that the Hearing Officer failed to perceive that the Respondent had misrepresented significant facts on her application for licensure.

After hearing arguments of counsel and upon a complete review of the record, the Commission adopts the Petitioners Exceptions to the Hearing Officers Recommended Order. The Commission adopts the Findings of Fact, with the modifications to Paragraphs 4 and 7 of the Recommended Order, as outlined in the Petitioners Exceptions.

Specifically, the Commission determines that, in Paragraph 4, the question on the application was not in fact answered completely, as outlined by the Petitioners Exceptions. The Commission further determines the application for licensure requires, and clearly states on it, that the applicant is "to state...the details...in full." The Commission concludes that the applicant did not state "in full" and "in detail" issues of the conviction.

As for Paragraph 7 of the Recommended Order (which refers to the letter of inquiry addressed to the Respondent by Ruther Clayton of the Division of Real Estate staff), the Commission determines that the Respondent did not reveal information regarding remuneration or the fact that the Respondent had paid

$2500 to an arsonist to burn her home.

The Commission concludes that the Hearing Officer erred in his Findings of Fact, based both on the testimony as well as on the exhibit of the 14-count conviction from the Superior Court of New Jersey.

Therefore, the Commission adopts the Petitioners Exceptions to the Hearing Officers Conclusions of Law and finds that the Hearing Officer erred by not establishing the two Findings of Fact, as set forth above, which constitute a violation of Chapter 475, Florida Statutes.

The Commission concludes that the Respondent did, in fact, conceal and misrepresent pertinent information and, had that information been available to the Commission in reviewing the Respondent's application, there would have been a different ruling on her application.

In accordance with the above, the Commission amends the Recommended Order by adopting the Petitioner's Exceptions to the Hearing Officer's Findings of Fact and Conclusions of Law and finds the Respondent guilty of having obtained a real estate license by means of fraud, misrepresentation or concealment, in violation of s.475.25(1)(m), Florida Statutes, as charged in Count I of the Administrative Complaint. The Commission therefore ORDERS that the Respondent's license be revoked.

This Order shall be effective on date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of

Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 16th day of October 1990 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to Dean J. Trantalis, Esquire, 7900 Glades Road, Boca Raton, Fl 33434; to Hearing Officer Michael Parrish, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Fl 32399-1550; and to James Gillis, Esquire, DPR, P.O. Box 1900, Orlando, Fl 32802, this 2nd day of November 1990.

MB :JM:pep Darlene F. Keller, Director

Docket for Case No: 90-000448

Orders for Case No: 90-000448