STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-4077

)

NOEL ANTHONY BROWN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on December 2, 1998, in Miami, Florida.

APPEARANCES

For Petitioner: Geoffrey Kirk, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Ron Cordon, Esquire

Cordon Law Offices

335 Northwest 54th Street Miami, Florida 33127

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On August 19, 1998, Petitioner issued a one-count Administrative Complaint whereby it alleged that Respondent violated the provisions of Section 475.25(1)(m), Florida Statutes, by obtaining his real estate salesperson license "by means of fraud, misrepresentation, or concealment."

Respondent filed an election of rights which disputed the factual allegations contained in the Administrative Complaint, and Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called no witnesses; however, Petitioner's Exhibits 1 through 4 were received into evidence. Respondent testified on his own behalf, and Respondent's Exhibit 1 was received into evidence.

The transcript of hearing was filed December 21, 1998, and the parties were accorded leave until December 31, 1998, to file proposed recommended orders or post-hearing argument. The Respondent elected to submit post-hearing argument and it has been duly considered.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia,

   with the responsibility and duty to prosecute administrative

   complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes.

2. Respondent, Noel Anthony Brown, is a licensed real estate salesperson in the State of Florida, having been issued license number 0642242.

3. On July 23, 1996, Respondent filed an application (dated July 19, 1996) with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following 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, or applicable law of another state, 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.

   Respondent responded to the question by checking the box marked "No."

4. The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows:

   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 inquiries concerning his/her qualifications. (Emphasis added.)

5. On September 30, 1996, Respondent passed the salesperson examination and he was issued license number 0642242 as an inactive salesperson. From November 12, 1996, through the date of the hearing, Respondent has been an active salesperson associated with Premiere Homes Realty, Inc., a broker corporation located at 5737 Pembroke Road, Hollywood, Florida.

6. By letter of March 16, 1998, the Department requested an explanation from the Respondent regarding certain information it had received from the Florida Department of Law Enforcement regarding Respondent's criminal record. That letter provided, in

   pertinent part, as follows:

   The Florida Department of Law Enforcement has returned information to this office that an arrest was made on January 3, 1992 by the Metro-Dade Police Department for Marijuana- Possess-MISD[EMEANOR]. To clear any ambiguity regarding your "No" response to the relevant application question, we request additional information. If charges were Dismissed or Nolle Prossed, please forward a copy of the dismissal or a notarized statement so that we may clear your records.

   
   

   If the charge(s) resulted in a conviction(s), or adjudication withheld, you will need to forward a copy of the Information, Plea and Sentencing to this office along with a statement or explanation regarding your failure to disclose this information on your application form.

   
   

7. By letter of May 5, 1998, Respondent responded to the Department's inquiry, as follows:

   Please correct the answer to question nine

   (9) on my application to "Yes". A copy of the printed docket case action summary is enclosed as indicated.

   
   

   I did not in anyway write "NO" to hide the information. I was not familiar with the terms used in the Criminal Justice System and was confused when I was told that I was not found guilty. This was an honest mistake and I do apologize.

   
   

8. As for the disposition of the charge, the case summary (Petitioner's Exhibit 1) reveals that Respondent was charged with unlawful possession of cannabis (marijuana), a misdemeanor.1 According to the summary, Respondent apparently entered a plea (although whether the plea was guilty, not guilty, or nolo contendre is not of record) on or about April 13, 1992, and the court apparently found Respondent guilty of the charge since it

   "withheld ADJUDICATION WITH FINE AND COSTS."

9. Thereafter, on August 19, 1998, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid criminal disposition, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against his license. According to the complaint, the disciplinary action sought

   . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 2

10. Consistent with the explanation he offered the Department in his letter of May 5, 1998, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate reflection of his understanding of the disposition of the charge. According to Respondent, who was not represented in the criminal matter, he simply followed the instructions of the court personnel, since he was unfamiliar with court procedure, and, after having complied with those instructions, it was his understanding that the matter was dismissed.

11. Here, Respondent's explanation for his failure to disclose the marijuana possession charge on his application is credited, and it is resolved that, at the time he submitted his

    application, Respondent did not intend to mislead or deceive those who would be reviewing his application. In so concluding, it is observed that Respondent's testimony was candid and his understanding of the disposition of the matter was, given the alien nature of the experience, reasonable.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (1997).

13. Where, as here, the Department proposes the take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla.

    4th DCA 1983). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State,

    501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of

    Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in determining whether Respondent violated the provisions of Section 475.25(1), as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

14. Pertinent to this case, Section 475.25(1), Florida Statutes, provides that the Florida Real Estate Commission:

    . . . may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:

    
    

    * * *

    
    

    (m) Has obtained a license by means of fraud, misrepresentation, or concealment.3

15. To establish that a licensee committed a violation of Subsection 475.25(1)(m), the Department must show not only that the licensee provided false or misleading information on his application, but that he did so knowingly and intentionally.4 Munch v. Department of Professional Regulation, 592 So. 2d 1136,

    1143 (Fla. 1st DCA 1992) ("[A]pplying to the words used [in Section 475.25(1)(m)] their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found."). Accord, Walker v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998). See also Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95, 97 (Fla. 1st DCA 1974) (statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue"; "[t]o constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally))"; and Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed.

    Cir. 1986) ("[A] charge of falsification of a government document [in this case, an employment application] requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency. The fact of an incorrect response cannot control the question of intent. Were a bare inaccuracy controlling on the question of intent, the 'intent' element of the charge would be subsumed within the distinct inquiry of whether the employee's answer adheres to the true state of facts. A system of real people, pragmatic in their expectations, would not easily tolerate a rule under which the

    slightest deviation from truth would sever one's tenuous link to employment. Indeed, an SF-171 does not require absolute accuracy. Instead an employee must certify that the answers are 'true, complete and correct to the best of my knowledge and belief, and are made in good faith.' No more than that can reasonably be required. The oath does not ask for certainty and does not preclude a change in one's belief.")

16. Here, it is undisputed that Respondent's answer to the inquiry made in item 9 of the application was inaccurate; however, the evidence adduced at hearing (specifically the unrebutted testimony of Respondent on the subject, which the undersigned has credited) establishes that, in responding to the question in the manner he did, Respondent did not intend to deceive or defraud anyone about his past, but rather responded in a manner he believed, in good faith, was appropriate. Consequently, the charge that Respondent "obtained [his] license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Florida Statutes," must be dismissed.

RECOMMENDATION

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

RECOMMENDED that a Final Order be rendered dismissing the Administrative Complaint.

DONE AND ENTERED this 5th day of January, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings

this 5th day of January, 1999.

ENDNOTES

1/ The actual court file on the case was not available because, according to the Clerk of Court, "PURSUANT TO FLORIDA RULE OF CRIMINAL PROCEDURE 2.975 RETENTION OF COURT RECORDS, THE REQUIREMENT FOR RETAINING MISDEMEANOR CASES UNDER THE RULE IS

(5) FIVE YEARS. THEREFORE, THE ABOVE FILES ARE UNAVAILABLE." However, given the nominal amount of marijuana found in Respondent's possession (a small baggie, found on the floor of Respondent's car, which contained enough marijuana for one or two "joints"), Respondent was most likely charged with a violation of Section 893.13(6)(b), Florida Statutes, a misdemeanor of the first degree.

2/ The complaint also sought an award of costs as provided for by Section 455.227(3), Florida Statutes; however, the Department offered no proof, at hearing, regarding what costs, if any, it incurred. Consequently, there is no record basis on which to address such an award.

3/ As a general rule, a licensee may not be disciplined for conduct engaged in prior to licensure. An exception to this general rule exists, however, where the prelicensure conduct in question is the falsification of the licensee's licensure application. See Taylor v. Department of Professional Regulation,

534 So. 2d 782 (Fla. 1st DCA 1988); Board of Medicine v. Mata, 561 So. 2d 364 (Fla. 1st DCA 1990).

4/ Subsection (2) of Section 475.25, Florida Statutes (a statutory provision not cited by the Department in the Administrative Complaint issued in the instant case), provides that a licensed real estate salesperson's "license may be revoked or cancelled if it was issued through the mistake or inadvertence of the commission." This subsection, in contrast to Subsection (1)(m) of Section 475.25, Florida Statutes (the subsection upon which the Department is relying in seeking the revocation of Respondent's license), authorizes the Commission to revoke a license that was issued based upon erroneous information provided by the licensee concerning the licensee's qualifications, regardless of whether the licensee, in providing such information, had the intent to deceive.

COPIES FURNISHED:

Geoffrey Kirk, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Ron Cordon, Esquire Cordon Law Offices

335 Northwest 54th Street Miami, Florida 33127

James Kimbler, Acting Director Division of Real Estate 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: 98-004077

Orders for Case No: 98-004077