STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-0941

)

CAROL LOUISE ZISELMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administration Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on June 10, 1998, by videoconference between Tallahassee, Florida, and Orlando, Florida.

APPEARANCES

For Petitioner: Christine M. Ryall, Senior Attorney

Department of Business and Professional Regulation, Division of Real Estate

400 West Robinson Street, Suite 308 Orlando, Florida 32801-1772

For Respondent: Carol Louise Ziselman, pro se Apartment 625

5112 Park Central Drive Orlando, Florida 32839

STATEMENT OF THE ISSUE

An administrative complaint dated January 22, 1998, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes,

by failing to disclose a felony conviction on her application for licensure as a real estate salesperson. The issue for disposition in this case is whether that violation occurred and, if so, what penalty is appropriate.

PRELIMINARY STATEMENT

When Respondent disputed the allegations of the administrative complaint the case was forwarded to the Division of Administrative Hearings for a formal evidentiary hearing.

At the hearing Petitioner presented Exhibit Nos. 1-5, which were received into evidence without objection. Respondent's Exhibit No. 1 was received into evidence and Respondent testified in her own behalf.

The hearing transcript was filed on June 22, 1998. The parties filed their Proposed Recommended Orders on June 29 and July 2, 1998.

FINDINGS OF FACT

1. Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to statutes and rules governing the practice of real estate in the State of Florida.

2. Respondent is a real estate salesperson in Florida, practicing her licensed profession in Orlando, Florida.

3. At the age of eighteen Respondent had a child out of wedlock and was required to leave her home. She moved to New

   York City with her child, found work, and entered into a relationship that within a few months turned severely abusive.

4. Under threats or inducements by the abusive partner, Respondent committed a crime and on November 16, 1972, she entered a plea of guilty to grand larceny in the third degree in the Supreme Court of the State of New York. Respondent was sentenced to five years probation and ordered to pay $15,000 in restitution.

5. Working in the office of her legal aid attorney, Respondent was able to pay the restitution in full and her probation was terminated on September 29, 1978.

6. Although she still remembers in vivid detail her arrest, her fear for her child's well-being, her brief period in jail and representation by a court-appointed attorney, Respondent believed that her debt was paid when she was released from probation and she moved on with her life.

7. Respondent obtained a New York real estate license and was employed for a time by a large New York firm. She also worked other responsible jobs before moving from New York to Florida. Eventually her New York license lapsed since she did not keep it active.

8. In an application signed by Respondent on November 29, 1994, she applied for licensure as a real estate salesperson in the State of Florida. The application form includes this question no. 9:

   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 dates and outcome, 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.

   
   

9. Respondent signed the application before a notary public and her signature appears below this affidavit statement printed on the form:

   The above named, and undersigned, applicant for licensure as a real estate salesperson, 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 inquires concerning his/her qualifications. (Emphasis added.)

10. Respondent falsely checked the response "no" to the question described in paragraph 9, above.

11. Even though she had been employed by the attorney who represented her in her New York criminal case Respondent did not consult him or any other lawyer for advice on how to respond to the application question at issue. Nor did she contact the New York court to determine the status of her records.

12. Instead, Respondent relied on the fact that she had similarly withheld information on her New York licensure application without apparent consequence and she felt that she was through with the ordeal after she successfully completed the terms of her sentence.

13. Respondent is an articulate, intelligent and competent professional woman. In order to answer "no" she had to deliberately disregard the clear plain language of question No.9. Moreover, the fact that she was subsequently employed by the attorney who represented her belies her disavowal of understanding the legal consequences of her arrest, plea of guilty, and 5-years' probation. The tragic circumstances surrounding her crime some 26 years ago could have been

    considered by the Florida Real Estate Commission if Respondent had disclosed them at the time of her application. The circumstances do not explain or excuse her failure to disclose the crime.

14. The State of Florida issued Respondent her Real Estate Salesperson License No. 0621781 on March 16, 1995, after Petitioner reviewed her application and her examination results.

15. Since her licensure in Florida Respondent has practiced without other disciplinary incidents and enjoys the respect and high recommendation of persons with whom she has worked.

    
    

    CONCLUSIONS OF LAW

    
    

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

17. 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, 670 So. 2d 932 (Fla. 1996).

18. Section 475.25(1)(m), Florida Statutes, provides that a real estate license may be disciplined if the licensee "[h]as obtained a license by means of fraud, misrepresentation, or concealment."

19. Requisite evidence of intent is derived from the circumstances described in Respondent's testimony. Walker v. Florida Department of Business and Professional Regulation,

    705 So. 2d 652, (Fla. 5th DCA 1998). The agency met its burden of proving Respondent committed the alleged violation.

20. Rule 61J2-24.001, Florida Administrative Code, establishes disciplinary guidelines to be followed by the Florida Real Estate Commission in cases involving violations of Section 475.25(1)(m), Florida Statutes. The penalty is revocation and an administrative fine of $1000. The degree of financial hardship incurred by Respondent if her license is revoked is considered in the recommendation that no fine be imposed. See Rule 61J2-24.001 (4)(b), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED: that the Florida Real Estate Commission enter its final order finding Respondent guilty of violating Section 475.25(1)(m), Florida Statutes, and revoking her real estate salesperson's license.

DONE AND ENTERED this 24th 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 24th day of July, 1998.

COPIES FURNISHED:

Christine M. Ryall, Senior Attorney Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Carol Louise Ziselman Apartment 625

5112 Park Central Drive Orlando, Florida 32839

Thomas V. Infantino, Esquire Post Office Drawer 30

Winter Park, Florida 32790-0030

Henry M. Solares, Division Director Department of Business and

Professional Regulation Division of Real Estate

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

Linda Goodgame, General Counsel Department of Business and

Professional Regulation 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: 98-000941

Orders for Case No: 98-000941