STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 01-0314PL

)

MARK T. WEST, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case by telephone conference, on April 23, 2001, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings. The Administrative Law Judge appeared from Tallahassee, Respondent appeared from Madeira Beach, counsel for the Division appeared from Orlando, and Petitioner's witness appeared from Tampa.

APPEARANCES

For Petitioner: Juana C. Watkins, Esquire

Department of Business and Professional Regulation

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

For Respondent: Mark T. West, pro se

222 145th Avenue, East Madeira Beach, Florida 33708

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Respondent's license as a real estate salesperson in Florida should be disciplined because of the matters alleged in the Administrative complaint filed herein.

PRELIMINARY MATTERS

By a two-count Administrative Complaint filed in this matter on September 21, 2000, the Director of the Division of Real Estate (Division) alleged that Respondent, Mark T. West, failed to list all previous criminal actions taken against him in his application for licensure by the Division, in violation of Rule 61J2-2.027(2), Florida Administrative Code, and thereby obtained a real estate salesperson's license by means of fraud, misrepresentation, or concealment, in violation of Subsections 475.25(1)(e) and (m), Florida Statutes.

Respondent requested a formal hearing on the allegations, and after several continuances, this hearing ensued.

At the hearing, Petitioner presented the testimony of Steven L. Pence, an investigator supervisor with the Division, and introduced Petitioner's Composite Exhibit 1. Respondent testified in his own behalf but presented no exhibits.

A Transcript of the proceedings was furnished on May 7, 2001. Subsequent to the receipt thereof only counsel for Petitioner submitted matters in writing. These matters were

carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Division of Real Estate was the state agency responsible for the licensing of real estate salespersons and the regulation of the real estate sales profession in Florida. Respondent, Mark T. West, was licensed by the Division as a real estate salesperson on March 3, 1997, upon passage of the salesperson examination, and held license number SL-0647923. Notwithstanding Respondent's testimony that he has not been actively engaged in the practice of real estate, licensure records maintained by the Division reflect that from March 11, 1997 through the present, he has been active as a salesperson with two broker corporations, TRI W Group, Inc., from March 11, 1997 through September 17, 2000, and TRI-W Brokerage Inc., from September 18, 2000 to the date of certification,

   February 22, 2001.

   
   

2. On December 15, 1995, Respondent submitted an application for licensure to the Department of Business and Professional Regulation, Division of Real Estate. His application reflected he was born in St. Petersburg, Florida, on September 20, 1961. Question 9 on the application asks whether the applicant has ever been convicted of a crime,

   found guilty, or entered a plea of nolo contendere, even if adjudication was withheld. The question indicates it's applicability to any violation of the law of any municipality, county, state, or nation, including traffic offenses other than minor traffic offenses, and requires the applicant to provide details, including dates and outcomes, in full, on a separate sheet of paper. The time period of applicability is not limited.

3. On his application, Respondent, in answer to question 9, indicated "Yes" and listed a violation of failure to yield to a fire engine. No other offenses were reflected on the form, nor was any separate sheet listing other offenses found in the records of the Division.

4. After the application was filed, consistent with its usual practice, the Division conducted a criminal records background check on Respondent which revealed other offenses had been charged against him. On January 17, 1980, Respondent was charged with DWI in Pinellas County. His driver's license was suspended for 90 days, and he was fined.

5. On September 11, 1982, Respondent was charged with a misdemeanor charge of obstructing a police officer in the performance of his duties. Though Respondent claims he did nothing wrong and the police officer was reprimanded for charging him, the fact remains that Respondent pleaded guilty

   to the charge on December 2, 1982, and adjudication was withheld.

6. On January 13, 1986, Respondent was charged, in two separate cases, with obtaining property by worthless check. Both checks were for $81.90 and, according to Respondent, were given in payment for paint which he purchased to paint someone's home. He claims he was not paid for the job and, therefore, had no funds with which to satisfy the checks he wrote. Respondent pleaded guilty in both cases and was placed on probation in each case along with a requirement to make restitution and pay costs. He was discharged from probation after nine months. Respondent claims that as to all offenses to which he pleaded guilty, he did so upon advice of counsel.

7. Respondent was interviewed regarding his application on January 13, 2000, by an investigator with the Division to whom he indicated at the time that he did not believe he was required to list any offense over ten years in the past. At hearing, however, Respondent modified that answer by indicating his belief the ten-year limitation related only to traffic offenses.

8. Once the Administrative Complaint was served upon Respondent, in his election of rights, he claimed he had listed all the prior disciplinary actions on a separate sheet of paper which he enclosed with the application when it was

   submitted. He reiterated that claim in a letter to the Division on November 15, 2000, and he persists in that claim as of the date of this hearing.

9. Review of the application in question reveals that Respondent had previously submitted application for licensure in September, 1994, and had failed the examination for licensure on November 11, 1994, and on January 1, April 3, and June 12, 1995. A review of Respondent's investigative file failed to disclose the prior application or whether Respondent had listed his other offenses on that application. He claims he did so, however.

10. Respondent attended real estate school in preparation for taking the licensure exam. He cannot recall, however, whether, at the school, he was taught how to fill out the application and what was required to be on it. However, he admits to having read the application and realizes it had to be accurate and complete. He contends he believed he had complied with the disclosure requirements and signed the affidavit of completeness which appears on the application.

11. Respondent admits that all his difficulties with the law are not listed on the application form itself. He also admits that there is no time limit listed on the application and that the application form, as he submitted it, does not reflect there is an attachment or continuation in any form.

12. No explanation was given by the counsel for the Commission for the almost five-year delay between the filing of the application for examination by Respondent and the filing of the Administrative Complaint by the state.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Subsection 120.57(1), Florida Statutes.

14. In Count One of the Administrative Complaint, the Division of Real Estate alleges that by failing to list his entire criminal record on his application for licensure, Respondent obtained the license by fraud, misrepresentation, or concealment, in violation of Subsection 475.25(1)(m), Florida Statutes. In Count Two of the Complaint, the Division alleges that the same failure to disclose constitutes a failure to comply with the requirements of Rule 61J2-2.027(2), Florida Administrative Code, which requires the applicant to make it possible to freely inquire into his honesty, integrity, and good character, and thereby constitutes a violation of Subsection 475.25(1)(e), Florida Statutes, as well.

15. The burden of proof in this case rests upon Petitioner to prove by clear and convincing evidence that Respondent committed the offenses alleged. Department of

    Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

16. Chapter 475.25(1), Florida Statutes, empowers the Florida Real Estate Commission to discipline a license holder who has:

    (e) . . . violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

    
    

    or

    
    

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

    
    

17. The evidence of record is indisputable that Respondent did not list all his prior arrests and convictions on his application to take the examination for licensure as a real estate salesperson. The issue for resolution here is whether his failure to list those items constitutes fraud, misrepresentation, or concealment.

18. Respondent has explained his omission in several different ways. In one case he said he did not realize that anything older than ten years had to be listed. He also stated his belief that the ten-year limitation related only to traffic offenses. He also stated that he, in fact, listed all his prior disciplinary actions on a separate piece of paper which he enclosed with his application when it was mailed in.

    It is conceivable that an applicant might reasonably believe that an old traffic violation, even one so serious as a DWI violation, might not require listing. However, it strains the limits of credibility to accept as reasonable a belief that felony check charges or a charge of obstructing a policeman in the performance of his duties are not required to be listed.

    Further, Respondent's claim that he submitted a separate listing with his application is not credible. Consequently, it is clear that Respondent misrepresented and concealed his prior disciplinary record and obtained approval to take the examination for licensure through that misrepresentation and concealment. As such, he is in violation of both Subsections 475.25(1)(e) and (m), Florida Statutes.

19. The charging statute cited herein as legal basis for the Commission's proposed discipline lists those actions which may be taken when actionable misconduct is established. These include revocation, suspension of the license, probation under such conditions as the Commission directs, reprimand, and the imposition of an administrative fine.

20. The Counsel for the Commission aptly points out in her post-hearing submission that a professional license is not a right but a privilege granted by the State, and that the agency has broad discretion in determining the fitness of applicants for licensure. For that reason, the licensing

    agency must have available to it all pertinent information upon which to base its decision as to the applicant's worthiness for licensure.

21. The inquiry calling for information which Respondent did not adequately provide is designed to provide the licensing agency with that necessary information. Respondent clearly attempted to conceal information relative to the appropriateness of granting him a license. Rule 61J2- 2.027(2), Florida Administrative Code, defines the significance of the application process and recognizes that the applicant must make it possible to establish his honesty, trustworthiness, character and reputation for fair dealing so that an informed determination may be made of the likelihood he will deal honestly and fairly with the public with whom he engages. Respondent's failure to be forthright with the necessary information on his application casts grave doubt on his character and integrity and whether he should continue to hold a license as a real estate salesperson.

22. Guidelines for the imposition of discipline in cases

    
    

    involving violations of Subsection 475.25(1), Florida Statutes, are found in Rule 61J2-24.001, Florida Administrative Code, which lists as the normal discipline for obtaining a license through fraud, misrepresentation, or concealment revocation of the license and imposition of an

    administrative fine of $1,000. However, Subsection (4) of that rule permits deviation from those guidelines for aggravating or mitigating circumstances.

23. Counsel for Petitioner suggests that Respondent's attempt to exculpate himself from responsibility for his actions, by placing the onus of the misconduct on others constitutes aggravation which reflects upon his credibility. Counsel recommends that Respondent's license as a real estate salesperson be revoked.

24. On the other hand, the evidence of record shows that Respondent has been licensed and acting as a real estate salesperson since March 1997 with no claims of misconduct being filed against him. This four-year period of creditable service in the profession may also serve as a mitigating circumstance which could justify imposition of a penalty less than called for in the guidelines. Under the circumstances of this case, considering the several years of creditable service and the length of time elapsed since the concealed misconduct, an exercise of reasonable clemency is appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Real Estate Commission enter a Final Order finding Respondent guilty of a violation of Subsections 475.25(1)(e) and (m), Florida

Statutes, placing his license as a real estate sales person on probation for one year under such terms and conditions as the Commission may prescribe, and imposing an administrative fine of $1,000.

DONE AND ENTERED this 24th day of May, 2001, in Tallahassee, Leon County, Florida.

___________________________________ ARNOLD H. POLLOCK

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2001.

COPIES FURNISHED:

Juana C. Watkins, Esquire Department of Business and

Professional Regulation

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

Mark T. West

222 145th Avenue, East Madeira Beach, Florida 33708

Herbert S. Fecker, Director Division of Real Estate Department of Business and

Professional Regulation

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

Hardy L. Roberts, III, 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: 01-000314PL

Orders for Case No: 01-000314PL