STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-3773

)

WARREN KEITH BABB, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on October 7, 1998.

APPEARANCES

For Petitioner: Ghunise Coaxum, Senior Attorney

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Warren Keith Babb, pro se

2310 Southwest 53rd Street Cape Coral, Florida 33914

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

By Administrative Complaint dated July 23, 1998, Petitioner alleged that, on December 16, 1996, Respondent submitted to Petitioner an application for licensure as a real estate salesperson. The Administrative Complaint alleges that Respondent replied in the affirmative to question nine, which asks if he had ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication had been withheld. However, Respondent allegedly failed to include any details about the charges, and Petitioner issued the license "[i]n reliance upon Respondent's application."

The Administrative Complaint alleges that Respondent failed to disclose a plea of no contest, on June 28, 1995, to driving under the influence (changed at the hearing to reckless driving) and misdemeanor possession of under 20 grams of marijuana. The Administrative Complaint alleges that Respondent failed to disclose a plea of no contest, on July 10, 1991, to driving under the influence.

At the hearing, Petitioner called one witness and offered into evidence three exhibits. Respondent called no witnesses and offered into evidence two exhibits. All exhibits were admitted.

The court reporter filed the transcript on October 29, 1998.

FINDINGS OF FACT

1. Seeking to become a licensed real estate salesperson, Respondent submitted to Petitioner an application on

   December 16, 1996.

   
   

2. One of the questions on the application form asks: 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? . . .

   
   

   [Bold] 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. [End Bold]

   
   

3. Respondent checked "yes," but failed to attach the details or otherwise describe them on the form.

4. As alleged, Respondent pleaded no contest to driving under the influence in July 1991, and he was adjudicated guilty. He was placed on supervised probation for one year and lost his driving privileges for six months.

5. As alleged, Respondent pleaded no contest to the traffic misdemeanor of reckless driving and misdemeanor possession of under 20 grams of marijuana in June 1995. He was adjudicated guilty of reckless driving, and adjudication was withheld as to possession of marijuana. He was fined $630 and court costs for reckless driving.

6. In completing the application, Respondent realized that he would have to supply the details of the criminal offenses, of which he admitted when he checked the "yes" box. However, he set aside the application for a week or two, and, when he picked it up again to finish, he forgot about the need to attach a

   supplement. He thus sent it in incomplete and with a personal attestation that it was complete.

7. Despite the obvious omission from the application, Petitioner issued Respondent a real estate salesperson's license without requesting further information concerning the criminal offenses.

8. Respondent took the licensing examination on February 17, 1997. Passing the examination, he received his license shortly after it was issued on March 24, 1997.

9. The next contact between the parties was when Respondent received a letter, dated February 25, 1998, from Petitioner noting that the Florida Department of Law Enforcement had informed Petitioner of an arrest for the latter criminal offenses. The letter states: "To clear any ambiguity regarding your 'YES' response to the relevant application question, we request additional information." The letter also requests an explanation regarding Respondent's failure to disclose this information on his application form. The letter concludes that Respondent's application would be held in abeyance until receipt of the requested information.

10. By letter dated March 9, 1998, Respondent explained the circumstances surrounding the latter offenses, saying that he had not disclosed the information on the original application due to embarrassment. The letter does not mention the earlier criminal offense of driving under the influence.

11. Respondent testified at the hearing that he claimed embarrassment because he did not think that it would sound as good to say that he had forgotten about the need to add the supplement to his application. This testimony is credited.

12. It is impossible to infer an affirmative misrepresentation or attempt to conceal in the initial application. Respondent disclosed a criminal offense, and it was abundantly clear on the face of the short application form that he had failed to describe the disclosure, as requested to do so. Perhaps Petitioner's employees missed the box checked "yes" or, finding it, forgot to follow up on the matter. Clearly, though, Respondent sufficiently disclosed the matter to preclude a finding, on these facts, of any misrepresentation or intent to conceal.

13. Respondent's March 9 response to the February 25 letter is a different matter. Although the February 25 letter focuses its inquiry upon the latter criminal offenses and does not request a comprehensive response to the question of criminal offenses, Respondent could have also mentioned the earlier offense. This would have negated any inference whatsoever of an affirmative misrepresentation or intent to conceal in the application or at this later stage.

14. However, even considering the shortcoming of the February 25 response, the facts still do not support the finding,

    by clear and convincing evidence, that Respondent intentionally concealed the criminal offenses in his application.

15. As to the omission from the February 25 letter as a basis for discipline in itself, the Administrative Complaint does not charge Respondent with anything arising directly out of the contents of his February 25 letter. Likewise, Petitioner's proposed recommended order does not even mention Respondent's February 25 response.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

17. Section 475.25(1)(m) provides that the Florida Real Estate Commission may discipline a license if it finds that a licensee "[h]as obtained a license by means of fraud, misrepresentation, or concealment."

18. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

19. Petitioner has failed to prove that Respondent obtained his license by fraud, misrepresentation, or concealment. Even assuming that the omitted details were material, the evidence suggests that Respondent obtained his license due to the neglect

    of Petitioner, not due to fraud, misrepresentation, or concealment by Respondent. At most, Respondent is also guilty of neglect, but neglect is insufficient to prove fraud, misrepresentation, or concealment under Section 475.25(1)(m).

    See, e.g., Walker v. Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998).

20. As already noted, Petitioner did not attempt to predicate discipline on Respondent's February 25 response. This may be because the word, "obtained," in the statute would have precluded the imposition of discipline for this response, which, taking place almost one year after the issuance of the license, could have had nothing to do with the process by which Respondent obtained his license.

RECOMMENDATION

It is

RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 24th day of November, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 November, 1998.

COPIES FURNISHED:

Ghunise Coaxum, Senior Attorney Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Warren Keith Babb, pro se 2310 Southwest 53rd Street Cape Coral, Florida 33914

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

James Kimbler, Acting Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-003773

Orders for Case No: 98-003773