STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) CHARLES S. SAMEN, REPRESENTATIVE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1230

)

HENRY F. FOUNDAS, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in the above-styled case, after due notice to the parties, at Miami, Florida, on November 17, 1975.

APPEARANCES

For Petitioner: S. Ralph Fetner, Jr., Esquire

Associate Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida

William D. Fabing, Esquire Suite 205, Shore Building 7550 Southwest 57th Avenue South Miami, Florida 33143

ISSUE PRESENTED

Whether Respondent's registration as a real estate salesman should be revoked for alleged violation of Section 475.25(2), Florida Statutes.

FINDINGS OF FACT

1. Respondent executed an application for registration as a real estate salesman on March 26, 1973, and filed the application with the Florida Real Estate Commission on April 2, 1973 (Petitioner's Exhibit 1). Question 9 on the application reads as follows:

   
   

   "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted. Yes

   If yes, state details in full 1969 Convicted

   D.U.I Arrested for hindering police officer found not Guilty, Arrested for gambling Found not Guilty."

   
   

2. Official records of the Dade County Public Safety Department reflect the following:

   
   

   1. On February 25, 1954, Respondent was arrested and charged with bookmaking. The charge was nolle-prossed on June 25, 1954 (Petitioner's Exhibit 7).

      
      

   2. On December 1, 1959, Respondent was arrested and charged with operating a gambling house, bookmaking, conspiring to violate gambling laws, and possession of gambling devices. The charges of operating a gambling house and bookmaking were dismissed on September 13, 1960 and no action was taken as to the other two charged (Petitioner's Exhibit 6).

      
      

   3. On May 17, 1963, Respondent was arrested and charge, with operating and conducting a gambling house, bookmaking, possession of gambling equipment and paraphernalia, and a traffic offense. The records reflect that the first three charges were not prosecuted and there is no showing of the disposition of the traffic offense (Petitioner's Exhibit 5).

      
      

   4. On April 26, 1969, Respondent was arrested and charged with vagrancy, possession of gambling paraphernalia, and possession of telephone slugs. The charges were dismissed (Petitioner's Exhibit 4).

      
      

   5. On June 16, 1972, Respondent was arrested and charged with hindering a police officer, and resisting arrest. On October 5, 1972, he was found not guilty of resisting arrest and there is no record of any further action taken with regard to the charge of hindering a police officer (Petitioner's Exhibit 2,3).

      
      

3. Respondent testified that he had filled out the application form to the best of his ability and recollection at the time, and that he did not intend to deceive or conceal any of his prior arrests from the Real Estate Commission. He acknowledged that he should have indicated his gambling offenses in the plural in Question 9 of the application and that it was not his intention to show it in the singular. In support of this contention, he testified that he had filed a prior application for certification as a real estate salesman with the Commission about 1971, and that on that application he inserted the words "numerous gambling arrests" on Question 9. He felt that this fact, coupled with his admission on the 1973 application as to various offenses, would enable the Commission, when they checked his prior record, to obtain all relevant details concerning his prior criminal record. He further testified that he had never been convicted of gambling and that the charge of possessing gambling paraphernalia involved racing forms which were found in his motor vehicle. He further testified that he had not been arrested since 1972 and had never had any complaints during his six months of employment as a real estate salesman.

   
   

4. Mr. Samen, an investigator for the Commission, testified that the Respondent had been very cooperative in his investigation of this case. He also stated that Respondent never indicated to him that he had filed a prior application for certification, and that the file of the Respondent had not reflected any previous application having been filed. Respondent acknowledged at the hearing that he had answered "No" to Question 14 on the 1973 application

   concerning whether or not he had previously filed any application for registration as broker or salesman in Florida which had not been granted, but that this was due to misreading the question. Pursuant to stipulation at the hearing, Mr. Fetner, Associate Counsel for the Commission, agreed to search the Commission records after the hearing to determine whether or not Respondent had filed a previous application and to submit a late-filed exhibit concerning this fact. By letter of November 21, 1975, Mr. Fetner provided evidence to the Hearing Officer that the Commission records did reveal that Respondent had taken an examination for registration as a real estate salesman in 1968 but had failed the same, and that this fact would establish that Respondent had filed a previous application for registration because the granting of approval to take an examination is predicated upon the applicant having filed an application for registration. The records of the Commission, however, indicated that the prior application filed by Respondent was destroyed in 1973, or prior thereto (Petitioner's Composite Exhibit 9). In view of the foregoing substantiation of Respondent's testimony as to the filing of a prior application, testimony that he had advised the Commission of numerous gambling arrests in Question 9 of that application is deemed to be credible and is accepted as a fact, there being no evidence submitted to the contrary.

   
   

   CONCLUSIONS OF LAW

   
   

5. Petitioner has alleged that Respondent violated Section 475.25(2), Florida Statutes, by not including in his application for registration as a real estate salesman all of his arrests nor details thereof, and that he therefore is guilty of concealment in obtaining his registration as a real estate salesman in violation of the stated statutory provision.

6. Section 475.25(2) reads in part as follows: "475.25 Grounds for Revocation or Suspension

   (2) The registration of a registrant shall be revoked, if such registration, or a certificate issued thereon, is found to have been obtained by the registrant by means of fraud, misrepresentation or concealment,. . ."

   
   

   There can be no question that the abbreviated manner in which Respondent answered Question 9 on his application was incomplete and misleading in that he did not specifically list all of his arrests and charges relating to gambling, nor mention the 1963 traffic violation charge, the vagrancy charge, the charge of possession of telephone slugs, or the charge of resisting arrest. Although the Respondent may be considered to have put the Commission on notice in his 1968 application that he had been arrested for more than one gambling violation, he did not in any manner advise the Commission by any prior communication as to his arrests for the other offenses. On the other hand, the charges for vagrancy and possession of telephone slugs were not alleged by Petitioner in its information and no evidence was presented to establish the offenses of speeding and possession of gambling paraphernalia in 1956, as alleged in paragraph 6(b) of the information.

   
   

7. Respondent's apparent reliance on the fact that a Commission check of his arrest record would reveal all offenses for which he had been arrested or charged with in the past cannot be considered as justification for failure to provide all pertinent information himself. In this connection, it is noted that the affidavit of Respondent on the application recites that he has carefully read the application, answers, and attached statements and that all such answers

and statements are true and correct and are as complete as his knowledge, information and records permit without any evasions or mental reservations whatsoever. The execution of this affidavit by Respondent is evidence that he must have known he was not complying fully with the Commission requirements by not completely answering the questions in the application. It was incumbent upon him, if he did not recall all of the dates and details of his prior arrests and charges, to ascertain them from inquiries to the appropriate police department and, if unable to obtain the same, to advise the Commission of his inability to obtain such information, and that his answers to Question 9 were incomplete through no fault of his own. Not having done so, it is concluded that Respondent violated Section 475.25(2), Florida Statutes, by concealing facts concerning all of his prior arrests and charges in connection with the alleged commission of offenses, as required by Question 9 of the application.

RECOMMENDED ORDER

1. It is recommended that Respondent's registration as a real estate salesman be revoked for violation of Section 475.25(2) Florida Statutes.

   
   

2. It is further recommended that the Florida Real Estate Commission permit the Respondent to file a new application for registration as a real estate salesman, upon petition filed by the Respondent, in consideration of the mitigating circumstances in this case, predicated upon the existence of an unblemished record on the part of the Respondent since 1972, and a showing that he will hereafter conduct himself in accordance with the law and ethics governing registrants, pursuant to the authority contained in Section 475.31(6), Florida Statutes.

DONE and ENTERED this 19th day of December, 1975.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Docket for Case No: 75-001230

Orders for Case No: 75-001230