STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) 0F REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-2436

)

LOUIS CASANOVA, )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on September 25, 1998, in Orlando, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Laura McCarthy, Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Frederick H. Wilsen, Esquire

1999 West Colonial Drive, Suite 211

Orlando, Florida 32804 STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1997), by obtaining a

license by fraud, misrepresentation, or concealment. (All Chapter and Section references are to Florida Statutes (1997) unless otherwise stated.)

PRELIMINARY STATEMENT

On April 21, 1998, Petitioner filed an administrative complaint against Respondent alleging that Respondent violated Section 475.25(1)(m). Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented no witnesses and submitted three exhibits for admission in evidence. Respondent testified on his own behalf, called two witnesses, and submitted no exhibits for admission in evidence.

The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the transcript of the hearing filed on October 20, 1998. Petitioner did not file a Proposed Recommended Order ("PRO"). Respondent filed his PRO on

October 29, 1998.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for the regulation and discipline of real estate licensees in the state. Respondent is licensed in the state as a real estate sales person pursuant to license number 0640934. The last license issued to Respondent was c/o Raizor Realty, Inc., 12007 Cypress Run Road, Orlando, Florida 32836.

   
   

   
   

2. On July 3, 1996, Respondent applied for a license as a real estate salesperson. On the application, Respondent signed a sworn affidavit that all of his answers were true and correct and:

   . . . are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever. . . .

   
   

3. Question nine on the application asked Respondent whether he had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. Respondent answered "no." Petitioner relied on the accuracy of the application and issued a license to Respondent.

4. Respondent is active in the practice of real estate and depends on his license to earn a living. Respondent has no prior disciplinary history and has been licensed for approximately two years.

5. On February 20, 1985, Respondent was adjudicated guilty of misdemeanor theft. The court suspended the sentence.

6. Petitioner had changed the price stickers on a pair of shoes valued at $20 and on a jar of vitamins. The court found Respondent guilty of misdemeanor theft, fined him $100, and sentenced him to 30 days in jail.

7. The jail sentence was suspended pending completion of six-months' probation. Respondent completed probation in a satisfactory and timely manner.

8. Respondent did not willfully misstate a material fact. He conferred with friends. They advised Respondent that the matter was immaterial and more than seven years old.

9. Respondent answered no to question nine on his application in the good faith belief that the crime was immaterial and not the type of offense addressed in the question. When Petitioner's investigator inquired of Respondent, Respondent answered all questions fully and truthfully and cooperated in the investigation.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. The parties were duly noticed for the administrative hearing.

11. The burden of proof is on Petitioner. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the administrative complaint and the reasonableness of any proposed penalty. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. Section 475.25(1)(m)1 provides in relevant part that the Florida Real Estate Commission (the "Commission") can place Respondent on probation, suspend Respondent's license, revoke

    Respondent's license, or impose a fine of $1,000 if the Commission finds that Respondent obtained a license by fraud, misrepresentation, or concealment.

13. Disciplinary statutes such as Section 475.25 are penal in nature and must be strictly interpreted against the authorization of discipline and in favor of the person sought to be penalized. Munch v. Department of Business and Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); Fleischman v. Department of Business and Professional Regulation, 441 So. 2d 1121, 1133 (Fla. 3rd DCA 1983.) A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel and Restaurant Commission v. Sunny Seas No. One, 104 So. 2d 570, 571 (Fla. 1958.)

14. Florida courts have uniformly held that the appropriate culpability standard for those portions of Section 475.25 prohibiting conduct "by means of fraud, misrepresentation or concealment" is that the licensee engaged in an intentional act of misconduct. Walker v. Florida Department of Business, 705 So. 2d 652, 654 (Fla. 5th DCA 1998); Munch v. Department of Professional Regulation, supra, 592 So. 2d at 1143-1144; Morris v. Department of Professional Regulation, 474 So. 2d 841, 843 (Fla. 5th DCA 1985.) Intent is a state of mind. It is not subject to direct proof but must be inferred from the circumstances. Skold v. State, 263 So. 2d 627 (Fla. 3d DCA 1972).

15. The evidence submitted by Petitioner showed that Respondent submitted a false application. However, Petitioner did not charge Respondent with submitting a "false" application, as that term is used in Section 475.25(1)(l).

16. The evidence submitted by Petitioner provides a basis for drawing an inference that Respondent possessed the culpable intent required as an essential element of the charge against Respondent. However, such an inference is a rebuttable inference.

17. If a false application were determined to be synonymous with culpable intent, it would have the effect of transforming the inference drawn from a false application into an irrefutable inference. Similarly, if the testimony of the applicant and the applicant's witnesses could never overcome the inference drawn from documentary evidence, the inference would have the effect of an irrefutable inference.

18. Respondent's failure to correctly answer the question was the result of miscomprehension rather than dishonesty. At the worst, Respondent was careless when he answered "no" to question nine.

19. The evidence is less than clear and convincing that Respondent had a specific intent to commit fraud, misrepresentation, or concealment. Respondent's testimony was credible and persuasive.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of violating Section 475.25(1)(m), and dismissing the charges against Respondent.

DONE AND ENTERED this 15th day of December, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

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 15th day of December, 1998.

COPIES FURNISHED:

Laura McCarthy, Senior Attorney Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Frederick H. Wilsen, Esquire

1999 West Colonial Drive, Suite 211

Orlando, Florida 32804

James Kimbler, Acting Division Director Department of Business and

Professional Regulation Post Office Box 1900 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: 98-002436

Orders for Case No: 98-002436