STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-1882

)

JEFFREY L. FORBES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on September 11, 1998, in DeLand, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge Suzanne F. Hood.

APPEARANCES

For Petitioner: Ghunise Coaxum, Esquire

Department of Business and Professional Regulation

400 West Robinson Street, Suite N308 Orlando, Florida 32801

For Respondent: Frederick H. Wilsen, Esquire

1999 West Colonial Drive, Suite 211

Orlando, Florida 32804 STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of obtaining his real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On or about March 18, 1998, Petitioner Department of Business and Professional Regulation (Petitioner) filed an Administrative Complaint alleging that Respondent Jeffrey L. Forbes (Respondent) violated Section 475.25(1)(m), Florida Statutes. Respondent requested a formal hearing to contest the charge that he obtained his real estate broker's license by means of misrepresentation or concealment. Petitioner referred the case to the Division of Administrative Hearings on April 20, 1998.

The formal hearing was held on September 11, 1998.

Petitioner offered three exhibits which were admitted into evidence. Respondent testified on his own behalf.

The transcript of the proceeding was filed on September 28, 1998. Petitioner filed its proposed recommended order on October 12, 1998. Respondent filed his proposed recommended order on October 13, 1998.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to Chapters 455 and 475, Florida Statutes.

2. Respondent is now, and at all times material to this proceeding, was licensed as a Florida real estate broker. He holds real estate broker's license number 3004152.

3. Respondent passed the real estate broker's examination on April 22, 1996. From May 10, 1996, through September 8, 1996, Respondent was an inactive broker. Since September 9, 1996, Respondent has been a land developer and a real estate broker/officer of a real estate brokerage corporation in DeLand, Florida. There have been no prior complaints or disciplinary action against Respondent's Florida license.

4. Respondent is also a licensed real estate broker in Massachusetts since 1966 and in Colorado since 1994. There have been no complaints or disciplinary actions against Respondent's license in those states.

5. In 1981, Respondent sold a boat for $10,000 to a person who failed to make a full payment. About a year later, Respondent made a demand for payment from the buyer. An argument between Respondent and the buyer resulted in a pushing contest.

6. About one month later, Respondent ran a traffic light in Laconia, New Hampshire. The law enforcement officer who stopped Respondent informed him that there was an outstanding warrant for his arrest. Respondent was arrested and released on the same day. Until that time, Respondent was not aware that he had been charged with any offense.

7. Respondent appeared in court with his attorney on October 15, 1982. After pleading guilty to the charge of simple assault, he paid a fine in the amount of $50. Respondent

   received a sentence of 10 days of jail time, suspended on good behavior, and given a conditional discharge.

8. Respondent filed a application for a Florida real estate broker's license on August 17, 1995. He signed a notarized affidavit on the application form, swearing that his answers and statements were true and correct.

9. The application form contained a question seeking the following information in pertinent part:

   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. . . .

   * * *

   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.

   
   

10. From the record, it is found that Respondent clearly understood question nine.

11. In response to this question, Respondent answered in the negative by marking the "no" box. Respondent asserts that his response was truthful at the time he signed the application because he had no independent recollections of the 1982 simple assault charge. He claims that he did not knowingly and

    intentionally give a false or incomplete response. Respondent testified that he would have disclosed his guilty plea if he had remembered it. Taking into account all evidence, Respondent's testimony is not persuasive.

12. Petitioner's investigator subsequently questioned Respondent about the 1982 offense. Respondent then contacted his attorney in New Hampshire. The attorney obtained a copy of the court docket which was subsequently furnished to Petitioner.

13. During the hearing, Respondent testified that he still cannot remember whether the police fingerprinted him after his arrest. Respondent claims that he cannot remember the judge pronouncing a sentence or his attorney explaining anything about the proceeding to him. Likewise, this testimony is not credited.

    CONCLUSIONS OF LAW

    
    

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

15. Petitioner must prove the allegations contained in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). Petitioner has met this burden.

16. Petitioner may discipline a real estate licensee if the licensee obtained the license by "means of fraud,

    misrepresentation, or concealment." Section 475.25(1)(m), Florida Statutes.

17. Petitioner has proved that Respondent knowingly and deliberately obtained his license in violation of Section 475.25(1)(m), Florida Statutes. Respondent's testimony that he did not remember his criminal record when he signed his application is not persuasive. The undisputed details of the

1982 offense and the broad spectrum of information sought in question nine make it impossible for the undersigned to reach any other conclusion.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That Petitioner enter a Final Order revoking Respondent's

real estate broker's license and fining him $1000.

DONE AND ENTERED this 6th day of November, 1998, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 6th day of November, 1998.

COPIES FURNISHED:

Ghunise Coaxum, Esquire Department of Business and

Professional Regulation

400 West Robinson Street, Suite N308 Orlando, Florida 32801

Frederick H. Wilsen, Esquire

1999 West Colonial Drive, Suite 211

Orlando, Florida 32804

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32802-1900

Lynda L. 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: 98-001882

Orders for Case No: 98-001882