STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LIFESTYLE BUILDERS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-5474

) DEPARTMENT OF BANKING AND FINANCE, ) DIVISION OF FINANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 13, 1995, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Robert D. Lettman, Esquire

Second Floor

8010 North University Drive Tamarac, Florida 33321-2118

For Respondent: Tobi C. Pam, Esquire

Department of Banking and Finance

201 West Broward Boulevard, Suite 302 Fort Lauderdale, Florida 33301-1885

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for licensure as a retail installment seller should be granted.

PRELIMINARY STATEMENT

By correspondence dated July 19, 1994, Respondent advised Petitioner that its application for licensure as a retail installment seller was denied, and Petitioner timely requested a formal hearing regarding that denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the formal proceeding.

Petitioner presented the testimony of John K. Moyant, and William Treadwell Sims testified on behalf of Respondent. Additionally, Joint Exhibits numbered

1. and Respondent's Exhibit numbered 1 were admitted in evidence.

   
   

   Although both parties requested leave to file post-hearing proposed findings of fact in the form of proposed recommended orders, only Petitioner did so. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

   FINDINGS OF FACT

   
   

   1. John K. Moyant is the president and secretary of Petitioner Lifestyle Builders, Inc. He has also been a licensed general contractor in the state of Florida since 1973. He was formerly licensed by the state of Florida as a real estate broker.

      
      

   2. In July of 1986, the Florida Department of Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Moyant and others. Moyant subsequently decided that he would voluntarily surrender his real estate broker license rather than defend the administrative action filed against him. On November 12, 1987, he executed an Affidavit for the Voluntary Surrender of License for Revocation. That Affidavit read, in part, as follows:

      
      

   3. That in lieu of further investigation

      and prosecution of the pending complaint(s) and case(s) received and filed with the Department of Professional Regulation, I do hereby consent to and authorize the Florida Real Estate Commis-

      sion of the Department of Professional Regulation to issue a Final Order revoking any and all licenses and permits issued to or held by the undersigned.

   4. That effective date of the revocation shall be 11-12-87.

   5. That I will not apply for nor otherwise seek any real estate license or permit in the State of Florida for a period of not less than ten (10) years from the effective date of the revocation.

* * *

8. That I waive any right to appeal or other- wise seek judicial review of the Final Order of revocation to be rendered.

The Florida Real Estate Commission entered a Final Order on December 10, 1987, ordering that Moyant's license "be revoked, effective November 12, 1987."

1. On May 16, 1994, Moyant completed, on behalf of Petitioner, an Application for Retail Installment Seller License. That application identified Moyant as one of the principals in the business in that he is the president and secretary and further listed Moyant as the corporation's resident agent.

   
   

2. Question numbered three on that application reads as follows:

   
   

   3. Has the applicant, any of the persons listed herein, or any person with power to direct the management or policies of the applicant had a license, registration, or the equivalent, to practice any profession

   or occupation revoked, suspended, or otherwise acted against?

   
   

   Moyant answered that question in the negative.

   
   

3. Respondent received the application of Lifestyle Builders, Inc., on May 19, 1994. In reviewing that application, Respondent checked Moyant's name in

   the Department's computer system known as CREAMS. The computer check revealed that Moyant had been the subject of a Final Order of Revocation by the Florida Real Estate Commission. Respondent verified the accuracy of that information by obtaining from the Commission a copy of the Administrative Complaint, the Affidavit for the Voluntary Surrender of License for Revocation, and the Final Order. Based upon that information, Respondent advised Petitioner that its application was denied.

   
   

4. Moyant's answer to question numbered three was a material misstatement of fact.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

   
   

6. The Department based its denial of Petitioner's application on Section 520.995(3), Florida Statutes, which requires the Department to deny a license on, inter alia, the following grounds:

   
   

   1. A material misstatement of fact in an initial or renewal application for a license;

   2. Having a license, registration, or the equivalent, to practice any profession or occupation denied, suspended, revoked, or otherwise acted against by a licensing authority in any jurisdiction for fraud, dishonest dealing, or any act of moral turpitude....

      
      

      The Department's representative testified at the final hearing that the Department was in error in relying on Section 520.995(3)(b) since the revocation of Moyant's real estate broker license by the Florida Real Estate Commission was pursuant to Moyant's agreement that his license be revoked and not pursuant to a judicial or quasi-judicial determination that Moyant's conduct involved fraud, dishonest dealing, or an act of moral turpitude. Accordingly, the remaining basis for the Department's preliminary denial of Petitioner's application is the Department's allegation that Moyant's answer to question numbered three on the application constitutes a material misstatement of fact in an application for a license, conduct prohibited by Section 520.995(3)(a), Florida Statutes.

      
      

7. Petitioner argues, and Moyant so testified, that Moyant did not understand that his real estate broker license had been revoked; rather, he thought he had merely voluntarily surrendered that license. Therefore, Moyant testified, he did not intend to misstate a material fact since he did not know that he was. Moyant's testimony is not credible in that he signed an Affidavit entitled "Voluntary Surrender of License for Revocation," the Affidavit stated that he consented to and authorized the Florida Real Estate Commission to revoke his license, he agreed to a specific effective date for the revocation, he represented that he would not seek relicensure for at least ten years from the effective date of revocation, he waived any right to seek review of the Final Order of Revocation to be entered by the Commission, and the Commission's Final Order specifically set forth that Moyant's license as a real estate broker was revoked. Petitioner's argument -- that it was never proven that Moyant engaged in wrongdoing which is a pre-requisite to revocation -- is generally correct; however, Moyant waived the necessity for that proof by voluntarily agreeing to revocation of his real estate broker license.

8. Petitioner also argues that since the Department discovered on its own that Moyant's license had been revoked, it does not matter how Moyant answered question numbered three on the application because any misstatement was irrelevant and not relied upon by the Department. Petitioner's argument is without merit. The Department's reliance on the answer is not at issue; rather, at issue is the character and honesty of the principals of Petitioner. Moyant's failure to disclose his license revocation is a misstatement of material fact and, as such, constitutes grounds for denial of Petitioner's application.

   
   

9. Petitioner also argues that Moyant's material mis-statement is irrelevant since if Moyant had answered question numbered three in the affirmative, the Department would have been precluded from denying Petitioner's application. According to Petitioner, even had Moyant advised the Department that his real estate broker license had been revoked, the Department would not have denied Petitioner's application since Moyant's revocation was not based on fraud, dishonest dealing, or an act of moral turpitude. Petitioner's argument is not persuasive. Since Moyant did not give a true answer to that question, the consequences of having answered the question truthfully are not dispositive of this matter.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for licensure as a retail installment seller.

DONE and ENTERED this 27th day of April, 1995, at Tallahassee, Florida.

LINDA M. RIGOT, 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 27th day of April, 1995.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Recommended Order did not contain any clearly- identified proposed findings of fact. It is assumed that the un-numbered paragraphs contained in the section entitled "Preliminary Statement" are intended to be Petitioner's proposed findings of fact. Rulings on those un- numbered paragraphs are as follows:

1. Petitioner's first through third un-numbered paragraphs in the Preliminary Statement portion of Petitioner's Proposed Recommended Order have been adopted in substance.

2. Petitioner's fourth un-numbered paragraph in the Preliminary Statement portion of Petitioner's Proposed Recommended Order has been rejected as not being supported by the credible evidence in this cause.

COPIES FURNISHED:

Robert D. Lettman, Esquire

8010 North University Drive, Second Floor Tamarac, Florida 33321-2118

Tobi C. Pam, Esquire

Department of Banking and Finance

201 West Broward Boulevard, Suite 302 Ft. Lauderdale, Florida 33301-1885

Honorable Robert F. Milligan Comptroller, State of Florida Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350

Harry Hooper, General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, Florida 32399-0350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 94-005474

Orders for Case No: 94-005474