STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

Petitioner,

vs.

YOLANDA D. SMALL,

Respondent.

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) Case No. 06-3819PL

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RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by Administrative Law Judge T. Kent Wetherell, II, on January 5, 2007, by video teleconference between sites in Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner: Sorin Ardelean, Esquire

Department of Business

and Professional Regulation

400 West Robinson Street, Suite 810N Orlando, Florida 32801-1757

For Respondent: Yolanda D. Small, pro se

Post Office Box 1303 Windermere, Florida 34786

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section 475.25(1)(e) and (1)(m), Florida Statutes (2003),1 and Florida

Administrative Code Rule 61J2-2.027(2), and if so, what discipline should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division), alleged in a two-count Administrative Complaint dated August 15, 2006, that Respondent violated Section 475.25(1)(e) and (1)(m), Florida

Statutes, and Florida Administrative Code Rule 61J2-2.027(2), by failing to disclose several prior convictions and by omitting and misrepresenting other information in her license application. Respondent disputed the allegations in the Administrative Complaint and requested a formal hearing through an Election of Rights form dated September 7, 2006, and received by the Division on or about September 18, 2006.

On October 3, 2006, the Division referred this matter to the Division of Administrative Hearings (DOAH) for the assignment of an Administrative Law Judge to conduct the hearing requested by Respondent. The referral was received by DOAH on October 5, 2006.

The final hearing was initially scheduled for December 8, 2006, but it was rescheduled for January 5, 2007, at Respondent’s request. At the hearing, the Division presented the testimony of Jack Case and Respondent. The Division’s Exhibits (Div. Ex.) 1 through 10 were received into evidence.

Respondent testified in her own behalf and did not present any other witnesses. Respondent did not offer any exhibits.

Official recognition was taken of certain records from the 67th District Court in Michigan as well as Section 475.25, Florida Statutes, and Florida Administrative Code Rule 61J2-

1. See Order entered December 20, 2006. The Michigan court records were also received into evidence in Div. Ex. 5-7.

   On January 22, 2007, the Division filed an affidavit of Thomas W. O’Bryant, Jr., describing how the Division processed and approved Respondent’s license application. That information was requested by the undersigned at the final hearing.

   The Transcript (Tr.) of the final hearing was filed on January 25, 2007.2 The parties were given 10 days from that date to file proposed recommended orders (PROs). Respondent filed a letter summarizing her position on January 11, 2007, and the Division filed a PRO on February 2, 2007. The parties’ post- hearing filings have been given due consideration.

   FINDINGS OF FACT

   
   

   1. Respondent is a licensed real estate sales associate.

      
      

      She was licensed in 2003. Her license number is 3061179.

      
      

   2. Respondent was working for Weichert Realty in the Orlando area at the time of the final hearing. She started working for that firm in October 2006, and prior to that, she

      “did not do a whole lot with [her] license as far as practicing real estate.”

   3. Respondent filled out and submitted her license application over the Internet. She submitted a signed notarized statement dated January 15, 2003, attesting that she answered the questions in the application “completely and truthfully to the best of [her] knowledge.” She also submitted a fingerprint card.

   4. The evidence clearly and convincingly establishes that there were at least three material misstatements and omissions in Respondent’s license application.

   5. First, Respondent did not provide a Social Security number (SSN) in her license application. The SSN that she subsequently provided to the Division, 378-72-0704, was incorrect.

   6. Respondent testified that her SSN is 378-62-0704. That is the SSN listed for Respondent in the driver’s license records maintained by the Florida Department of Highway Safety and Motor Vehicles (DHSMV).

   7. There is evidence suggesting that Respondent’s SSN may actually be 380-80-3178, but the evidence is not clear and convincing on that point.3

   8. The document on which Respondent provided the incorrect SSN was not offered into evidence by the Division. Respondent

      denied providing an incorrect SSN, and she testified that if she did provide an incorrect SSN, it must have been typographical error.

   9. Second, the only name listed for Respondent in her license application was Yolanda Orr, which was Respondent’s married name and her legal name at the time she submitted her application.

   10. Respondent answered “no” to the question that asked whether she has ever “used, been known as or called by another name (example - maiden name . . .) or alias other than the name singed to the application.” (Emphasis supplied.)

   11. Respondent’s maiden name is Yolanda Small. She used that name until July 1998, when she was married. She was divorced in February 2006, and she is again using her maiden name.

   12. Respondent currently has two valid forms of identification issued by DHSMV: a Florida driver’s license in the name of Yolanda D. Small (No. S540-964-67-7491) and a Florida identification card in the name of Yolanda D. Orr (No. O600-964-57-7490). The driver’s license was issued in March 2006,4 and expires in July 2010; the identification card was issued in August 2002, and expires in July 2007. The birth date listed on the driver’s license is July 9, 1967, whereas the birth date listed on the identification card is July 9, 1957.

   13. Respondent testified that her middle name is Daniella, not Denise. She further testified that she has never used the name Yolanda Denise Orr.

   14. In response to a request to the state court in Michigan for records relating to Respondent, the Division was provided documentation of multiple traffic offenses committed in Flint, Michigan in 1999 and 2001 by Yolanda Denise Orr, as well as documentation of criminal offenses committed in Michigan by Yolanda Daniella Orr and Yolanda Danielle Orr. The traffic records do not list the defendant’s Social Security number, but the birth date listed in the records matches Respondent’s birth date.

   15. Respondent’s testimony that the traffic offenses did not involve her was not persuasive, nor was her claim there must be multiple Yolanda Orr’s in Flint, Michigan, with the same birth date as hers. Respondent admitted to being in Flint, Michigan at the time of the traffic offenses, and she admitted that she drove a Ford vehicle at the time of the ticket that was issued to Yolanda Denise Orr in October 2001 while driving a Ford. Moreover, the Michigan driver’s license number of Yolanda Denise Orr contained in the traffic records -- O600961139544 -- is identical (except for one number) to the Michigan driver’s license number -- O600961135544 -- that Respondent surrendered to DHSMV when she first applied for a Florida driver’s license.

   16. The evidence is clear and convincing that the Yolanda Denise Orr referred to in the traffic records is Respondent, and that Respondent failed to disclose that name (and her maiden name, Yolanda Small) in her license application.

   17. Third, Respondent only disclosed one criminal offense in response to the question in the application that asked whether she had “ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) . .

       . .”

       
       

   18. The criminal offense that Respondent disclosed was, according to the application, a 1987 offense in Louisiana which Respondent “used the wrong social security number” when “filling out [her] financial aid papers for the first time.”

   19. There is no evidence that Respondent was prosecuted for such an offense in Louisiana. Respondent was, however, prosecuted in federal court in Michigan in 1993 for using a false SSN on two separate student loan applications. Those offenses were prosecuted as part of an indictment that also included four counts of filing fraudulent tax returns with the Internal Revenue Service and two counts of using a false SSN on tax returns.

   20. In February 1995, Respondent pled guilty to one count of filing a fraudulent tax return, one count of using a false SSN on a tax return, and one count of using a false SSN on

       student loan applications. The other counts of the indictment were dismissed as part of her plea agreement.

   21. In September 1995, Respondent was adjudicated guilty of the offenses to which she pled guilty and was sentenced to six months in federal prison, followed by three years of probation. She was also required to pay restitution in the amount of $8,177 to the Internal Revenue Service and restitution in the amount of $2,761 to the U.S. Department of Education.

   22. Respondent testified that “the whole reason the [federal] case came about” was that she filed a tax return not knowing that one had already been filed on her behalf by H&R Block; that the investigation into the “double” filing of the tax return led to the charge involving the “student loan application that had the wrong social security number on it”; and that it was her understanding that the offenses related to the student loan application submitted to Grambling State University, not any colleges in Michigan.

   23. Respondent’s testimony regarding the circumstances giving rise to the federal offenses was not credible because, among other things, she was charged with filing false tax returns on three separate occasions -- in 1990, 1991, and 1992 -

       - not just one time.

       
       

   24. The background check conducted on Respondent based upon the fingerprint card that she submitted as part of her

       license application identified two additional criminal offenses that Respondent did not disclose in her application.

   25. The first undisclosed offense was a 1990 felony retail fraud offense prosecuted in state court in Michigan. Respondent pled guilty to the offense and was sentenced to one year of probation. The record does not reflect the circumstances surrounding the retail fraud offense, but Respondent described it as “basically a petty theft.”

   26. The second undisclosed offense was a 1991 bad check charge, which was also prosecuted in state court in Michigan. The case was not resolved until February 2001 because, according to Respondent, it involved a check she wrote prior to leaving for college and she was unaware that that a case was pending against her until she returned to Michigan after college.

   27. Respondent was required to disclose criminal traffic offenses in her license applications; she was not required to disclose traffic offenses such as “parking, speeding, inspection, or traffic signal violations.” The traffic records suggest that several of the offenses may have been criminal in nature (e.g., driving with a suspended license), but the evidence was not clear and convincing on that issue.5

   28. Respondent testified that she did not disclose the state court offenses because she did not remember them at the time she submitted her license application. She testified that

       she considered the federal offenses to be related and that she thought that disclosing one of the offenses was adequate since the other offenses were related and prosecuted together.

   29. Respondent’s explanation as to why she did not disclose all of her federal offenses is not entirely unreasonable under the circumstances. The offenses were all prosecuted in a single criminal proceeding and, even though they involved offenses committed in Michigan between 1990 and 1992 (rather than in Louisiana in 1987), they did involve use of an incorrect SSN on a student loan application.

   30. Respondent’s explanation as to why she did not disclose the offenses prosecuted in state court was not plausible. It is understandable that Respondent might not recall all of the details of the retail fraud offense since it occurred more than 10 years before the date of her application, but her testimony that she did not even remember the existence of the offense at the time she filled out her application was not credible or reasonable. Respondent’s testimony that she did not remember the bad check offense at the time she filled out her license application was even less credible because the court records related to that offense reflect that the case was not finally resolved until February 2001, which only two years prior to the date of Respondent’s license application.

   31. Respondent testified that she was told by a Division employee that she did not need to disclose all of the counts of the federal case because the related offenses would be discovered as part of the background screening based upon the fingerprint card submitted by Respondent. Respondent offered no evidence to corroborate her unpersuasive, self-serving testimony on this point.

   32. Respondent testified that she was directed by the same Division employee to provide a supplemental letter to the Division explaining the federal offenses, and that she did so. However, there is no record of what, if anything, Respondent submitted to the Division.

   33. Respondent’s application did not go to the Florida Real Estate Commission (Commission) for approval even though a criminal history was disclosed in the application. The Commission policy in effect at the time authorized the Division to approve such applications on a case-by-case basis. The policy did not require an applicant such as Respondent to appear before the Commission, as is the case under current Commission policy.

   34. Respondent did not present any evidence of mitigation at the final hearing. However, in her post-hearing filing, she stated, “I am a single mother, and as such, I rely on my real estate business as my only source of income.”

       CONCLUSIONS OF LAW

       
       

   35. DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (2006).

   36. The Division is the state agency responsible for investigating and prosecuting licensed real estate professionals under Part I of Chapter 475, Florida Statutes. See

       § 475.021(1), Fla. Stat. (2006). The Commission is the agency responsible for disciplining licensed real estate sales associates. See § 475.25(1), Fla. Stat. (2006).

   37. The Division has the burden to prove the allegations in the Administrative Complaint by clear and convincing evidence. See Dept. of Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

   38. The clear and convincing evidence standard requires that:

       
       

       the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. 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.

       
       

       In re Davey, 645 So. 2d 398, 404 (Fla. 1994).

   39. Section 475.25, Florida Statutes, provides in pertinent part:

       1. The 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:

          
          

          * * *

          
          

          (e) Has 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.

          
          

          * * *

          
          

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

          
          

   40. Applicants for licensure as a real estate sales associate are required to disclose certain information concerning their background to enable the Division to determine “whether the applicant is honest, truthful, trustworthy, of good character, and bears a good reputation for fair dealings, and will likely make transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relation of trust and confidence.” Fla. Admin. Code R. 61J2-2.027(2). See also § 475.17(1)(a), Fla. Stat. Most

       pertinent to this case, the applicant is required to disclose whether he or she has “ever [been] convicted of a crime” or “ever [been] called by . . . any other name, or alias, than the name signed on the application.” Fla. Admin. Code R. 61J2- 2.027(2)(a), (c).

   41. An applicant’s failure to fully disclose the information required on the license application is a violation of Florida Administrative Code Rule 61J2-2.027(2), which subjects the applicant or, in this case, the licensee, to discipline pursuant to Section 475.25(1)(e), Florida Statutes.

   42. It is not necessary to prove intent to establish a violation of the disclosure requirement in Florida Administrative Code Rule 61J2-2.027(2). All that must be proven is that the applicant failed to disclose his or her criminal history or other required information.

   43. The evidence clearly and convincingly establishes that Respondent’s license application contained material omissions and misstatements and, therefore, the Division met its burden to prove that Respondent violated Florida Administrative Code Rule 61J2-2.027(2) and Section 475.25(1)(e), Florida Statutes.

   44. In order to establish a violation of Section 475.25(1)(m), Florida Statutes, “fraud, misrepresentation, or concealment” must be proven, which requires proof of intent. See Walker v. Dept. of Business & Professional Reg., 705 So. 2d

       652, 654 (Fla. 5th DCA 1998); Munch v. Dept. of Professional Reg., 592 So. 2d 1136, 1143-44 (Fla. 1st DCA 1992); Dept. of

       Business & Professional Reg. v. Threnhauser, Final Order No. BPR-2001-04836 (FREC Nov. 29, 2001) (modifying Recommended Order in DOAH Case No. 01-1599PL and concluding that Section 475.25(1)(m), Florida Statutes, requires proof of an intentional act, not an intent to deceive), aff’d, 821 So. 2d 1217 (Fla. 5th DCA 2002).

   45. Intent may be proven by direct or circumstantial evidence. Walker, 705 So. 2d at 654. The Division offered only circumstantial evidence of Respondent’s intent to obtain a license by fraud, misrepresentation, or concealment.

   46. The evidence clearly and convincingly establishes that, consistent with her history of providing incorrect information to authorities, Respondent intentionally misrepresented or concealed information regarding her identity and criminal history in her license application. Respondent’s unpersuasive testimony regarding her prior use of the name Yolanda Denise Orr, her unpersuasive explanation as to why she did not disclose her state court offenses, and her prior federal offenses involving the use of a false SSN, are more than enough to establish that the omissions and misrepresentations in Respondent’s license application were not simply innocent mistakes as she contends. Accordingly, the Division met its

       burden to prove that Respondent violated Section 475.25(1)(m), Florida Statutes.

   47. Having determined that Respondent violated Florida Administrative Code Rule 61J2-2.027(2) and Section 475.25(1)(e) and (1)(m), Florida Statutes, it is necessary to determine what penalty is appropriate.

   48. The applicable penalty guidelines are in Florida Administrative Code Rule 61J2-24.001. The guidelines establish “the range of penalties which normally will be imposed for each count during a formal or an informal hearing” in the absence of aggravating or mitigating circumstances. Fla. Admin. Code R. 61J2-24.001(1). The penalties range from a reprimand to revocation of the license. Id.

   49. For a violation of Section 475.25(1)(e), Florida Statutes, the “usual action of the Commission shall be to impose a penalty from an 8 year suspension to revocation and an administrative fine of $1,000.” Fla. Admin. Code R. 61J2- 24.001(3)(f).

   50. For a violation of Section 475.25(1)(m), Florida Statutes, the “usual action of the commission shall be to impose a penalty of revocation and an administrative fine of $1,000” where, as in this case, the violation is not brought to the attention of the Division by the licensee. Fla. Admin. Code R. 61J2-24.001(3)(n).

   51. The Commission may deviate from the “usual” penalty range based upon evidence of aggravating or mitigating circumstances, as set forth in Florida Administrative Code Rule 61J2-24.001(4)(b). The number and nature of the omissions and mistatements in Respondent’s license application is an aggravating circumstance; Respondent’s lack of disciplinary history since she received her license is a mitigating circumstance, albeit one not entitled to significant weight because Respondent was not actively using her license until recently. Cf. In re Renke, 933 So. 2d 482, 495 (Fla. 2006) (removing judge from the bench even though he had performed well while on the bench because he obtained the office by fraud).

   52. The Division is seeking the revocation of Respondent’s license and a $1,000 fine in this case. See Division’s PRO, at

       ¶ 66.

       
       

   53. The penalty sought by the Division is within the range established by the guidelines and, given the nature of the mistatements and omissions in Respondent’s license application, her history of providing false information to authroities, and her lack of candor in her testimony at the final hearing, that penalty is reasonable and appropriate under the circumstances.

   54. The Division is also requesting that Respondent be required to pay its investigative costs in this case. See Division’s PRO, at ¶ 66.

   55. The Commision has the authority to impose investigative costs on Respondent, excluding costs associated with an attorney’s time. See §§ 455.01(1), 455.227(3)(a), Fla. Stat.; Dept. of Business & Prof. Reg. v. Walker, Case No. 06- 3781PL, 2006 Fla. Div. Adm. Hear. LEXIS 597, at ¶¶ 54-57 (DOAH Dec. 21, 2006).

   56. Imposition of the Division’s investigative costs on Respondent in addition to a $1,000 fine would be excessive under the circumstances of this case, particularly in light of the recommendation that Respondent’s license be revoked. Thus, the Commission should impose either a $1,000 fine or the Division’s investigative costs, whichever is less.

RECOMMENDATION

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

RECOMMENDED that the Commission issue a final order that:

1. finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes (Count I of the Administrative Complaint);

2. finds Respondent guilty of violating Florida Administrative Code Rule 61J2-2.027(2) and, hence, Section 475.25(1)(e), Florida Statutes (Count II of the Administrative Complaint);

3. revokes Respondent’s license; and

   
   

4. imposes an administrative fine of $1,000 or the Division’s investigative costs, whichever is less.

DONE AND ENTERED this 19th day of February, 2007, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II 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 19th day of February, 2007.

ENDNOTES

1/ All statutory references in this Recommended Order to the 2003 version of the Florida Statutes officially recognized at the Division’s request, unless otherwise indicated.

2/ The exhibits received into evidence were separately filed by the court reporter on January 30, 2007.

3/ That SSN is contained in the federal indictment filed against Respondent for the use of an incorrect SSN on two student loan applications. Specifically, the indictment alleges (in Count Seven) that in connection with her enrollment at Ross Medical Center in Flint, Michigan, in November 1990, Respondent falsely stated that:

her Social Security account number was 362- 80-0740; that her date of birth was 09/07/67; that she had never previously

attended college; and that she was not currently in default on a previous student loan, when in truth and fact, as the defendant then well knew, her Social Security account number was 380-80-3718; her date of birth was 07/09/67; she had previously attended Grambling State University; and she was in default on a previously obtained student loan.

Div. Ex. 3, at 5 (emphasis supplied). The indictment further alleges (in Count Eight) that in connection with her enrollment at Baker College in Flint, Michigan, in October 1991, Respondent falsely stated that:

her Social Security account number was 360- 26-4913; that her date of birth was 10/08/67; that she had never previously attended college; and that she was not currently in default on a previous student loan, when in truth and fact, as the defendant then well knew, her Social Security account number was 380-80-3718; her date of birth was 07/09/67; she had previously attended Grambling State University; and she was in default on a previously obtained student loan.

Id. at 6 (emphasis supplied). But see id. at 1 (Judgment entered in the federal case, which includes the notation “Defendant’s SSN: 378-62-0704”) and id. at 4 (Count Five of the indictment, which alleges that Respondent used a false social security number for purposes of obtaining a federal tax refund by submitting a tax return with SSN 380-80-3178 “when in fact [she] knew that number was not the Social Security account number assigned to her”). Respondent denied that her SSN was 380-80-3178 as alleged in the federal indictment, and she testified that she did not know why that number was in the indictment or where it came from. Tr. 70-71

4/ A close examination of the DHSMV records shows that Respondent was first issued a Florida driver’s license (No. O600-964-67-7490) in the name of Yolanda Daniella Orr in

December 2003; that duplicate licenses with that name and number were issued in July 2004 and April 2005; and that Respondent’s license number was changed to S540-964-67-7491 in March 2006

when she changed her name to Yolanda D. Small. See Div. Ex. 10. This chronology of events related to driver’s license numbers O600-964-67-7490/S540-964-67-7491 contradicts the Division’s argument in its PRO that “Respondent went so far as to apply for, and obtain on 12/04/03 a ‘spare’ Florida Identification Card as ‘Yolanda D. Small’, while she was still married to Mr.

Orr, and while being generally known as ‘Yolanda D. Orr.'” It does not, however, explain why Respondent obtained a Florida identification card (No. O600-964-57-7490) with an incorrect birth date.

5/ The traffic records contain handwritten notations identifying the nature of the offenses and indicating that Respondent has outstanding fines of $376 and an outstanding warrant for the driving with a suspended license offense. See Div. Ex. 6. The evidence does not establish who made those notations, only that the notations were on the records when they were received by the Division’s investigator. Tr. 27. Moreover, the notations are uncorroborated hearsay, which cannot serve as a basis for a finding of fact. See § 120.57(1)(c), Fla. Stat.

COPIES FURNISHED:

Michael E. Murphy, Director Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street, Suite 802N Orlando, Florida 32801

Sorin Ardelean, Esquire Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757

Yolanda D. Small Post Office Box 1303

Windermere, Florida 34786

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: 06-003819PL

Orders for Case No: 06-003819PL