STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-5598

)

IBRAHIM Z. GONZALEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated administrative law judge, Mary Clark, held a formal hearing in the above-styled case on April 26, 1998, by video-conference. The parties, their counsel, and the court reporter participated from the Hurston Building video-conference center in Orlando, Florida; the judge presided from the

video-conference center of the Division of Administrative Hearings in Tallahassee, Florida.

APPEARANCES

For Petitioner: Ghunise Coaxum, Esquire

Department of Business and Professional Regulation

Legal Section, Suite N 308 Zora Neale Hurston Building North Tower

400 West Robinson Street Orlando, Florida 32801-1771

For Respondent: Francisco Colon, Jr., Esquire

341 North Maitland Avenue Suite 360

Maitland, Florida 32751

STATEMENT OF THE ISSUE

An administrative complaint dated October 23, 1997, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he falsely indicated on his licensure application that he had never been convicted of a crime nor pled guilty or nolo contendere. The issue for disposition in this proceeding is whether the violation occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent disputed the allegations of the administrative complaint and promptly requested a formal hearing.

Upon referral to the Division of Administrative Hearings, the case was assigned and the hearing was set as described above.

Without objection Petitioner presented and had received into evidence these 5 exhibits: certification of licensure; licensure file; criminal court records in Case No. F81952, Municipal Court, San Diego, California; criminal court records in

Case No. 89-00308, U.S. District Court for the Southern District of New York; and certified copies of 5 Real Estate Commission orders. No other evidence was presented by Petitioner.

Respondent testified in his own behalf.

On May 11, 1998, Petitioner filed the hearing transcript and on May 20, 1998, Petitioner filed its proposed recommended order.

After an unopposed extension of deadline, Respondent's counsel filed his proposed recommended order on June 12, 1998.

FINDINGS OF FACT

1. Respondent, Ibrahim Z. Gonzalez, is, and has been at all relevant times, a licensed Florida real estate

   broker-salesperson, having been issued license no. 3003291 in accordance with Chapter 475, Florida Statutes.

2. On February 17, 1984, in San Diego, California, Respondent pled guilty to one count of sexual battery- a felony, and was jailed, fined, and placed on probation.

3. Respondent's court-appointed attorney told him the conviction would only affect him if he sought employment with the federal government or law enforcement.

4. On August 3, 1989, after a plea of guilty, Respondent was convicted in the U. S. District Court for the Southern District of New York of making false statements on a government application. Specifically, in 1985, Respondent withheld disclosure of the 1984 California conviction described above when he applied for employment with the U. S. Postal Service. For the federal conviction, he was placed on probation and fined $1,000.

5. By 1989, Respondent had obtained a real estate license in New York. His court-appointed lawyer advised him to "stick to real estate" because, as the California lawyer told him, he would

   never be able to work for the federal government or in law enforcement.

6. In May 1995, Respondent applied for licensure as a real estate broker in Florida. On the application form he answered "no" to this question:

   
   

   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? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO."

   If you answered "YES", attach the details including any sentence and conditions imposed, in full on a separate sheet of paper.

   
   

   Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate.

   
   

7. The affidavit that Respondent executed at the end of the application form states:

   The above named, and undersigned, applicant for licensure as real estate broker under the provisions of Chapter

   475, Florida Statutes, as amended, upon being duly sworn, deposes and says that s(he) is the person so applying, that s(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that s(he) knows of no reason why this application should be denied; and s(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications.

8. Respondent contends that he did not disclose his prior convictions when he applied to practice real estate in New York and Pennsylvania and he remains licensed in those states. He claims that because real estate has nothing to do with law enforcement or federal employment, he did not have to reveal the convictions on his application.

9. Respondent has practiced his real estate profession in Florida for 3 years without any disciplinary incidents.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569, Florida Statutes; 120.57(1), Florida Statutes; and 455.225(5), Florida Statutes.

11. In license discipline cases such as this, the agency must prove the allegations of its complaint with evidence that is

    "clear and convincing." Department of Banking and Finance v. Osborne Stern and Company, 690 So. 2d 932 (Fla. 1996).

12. Section 475.25(1)(m), Florida Statutes, provides that the Florida Real Estate Commission may discipline a licensee for obtaining a license "by means of fraud, misrepresentation, or concealment."

13. The text of the question regarding prior convictions could hardly be less ambiguous. The applicant is invited to consult with an attorney or the Division of Real Estate and the applicant is given clear notice of the consequences of an inaccurate answer. Respondent presented no credible explanation for his disregard of the plain language of the question so as to overcome the inference that his false answer was fully intentional. See Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998). The agency has thus met its burden of proving the violation.

14. Revocation is the penalty provided in the Florida Real Estate Commission's disciplinary guidelines governing violations of Section 475.25(1)(m), Florida Statutes. See Rule

61J2-24.001(3), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the Florida Real Estate Commission enter its final order finding Ibrahim Z. Gonzalez guilty of violating Section

475.25(1)(m), Florida Statutes, and revoking his Florida real estate brokers' license.

DONE AND ENTERED this 9th day of July, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1998.

COPIES FURNISHED:

Ghunise Coaxum, Esquire Department of Business and

Professional Regulation Legal Section, Suite N 308 Zora Neale Hurston Building North Tower

400 West Robinson Street Orlando, Florida 32801-1771

Francisco Colon, Jr.

341 North Maitland Avenue Suite 360

Maitland, Florida 32751

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

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

Lynda Goodgame

General Counsel

Department of Business and Professional Regulation

Northwood Center

1940 North Monroe Street Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-005598

Orders for Case No: 97-005598