STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) ANATOL ARIAN, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1883

)

IRVING PAUL SEHRES, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in the above-captioned matter, after due notice to the parties, at Miami, Florida, on January 15, 1976, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Louis B. Guttmann, III, Esquire Staff Counsel

For Respondent: Seymour Silverman, Esquire

420 Lincoln Road

Miami Beach, Florida 33139 STATEMENT OF THE ISSUE

Respondent's alleged violation of Section 475.25(2), Florida Statutes.

At the hearing, Petitioner moved to amend paragraph 1 of its Complaint to substitute the date "March 14, 1974," for "April 14, 1974," as the date on which Respondent filed his application for registration as a real estate salesman.

Petitioner also moved to amend paragraph 2 of the Complaint as to the date on which Respondent became a registered real estate salesman and received a Certification of Registration from "October 7, 1974," to "July 8, 1974." The motion was granted.

FINDINGS OF FACT

1. Respondent, on March 14, 1974, filed his application for registration as a real estate salesman with the Florida Real Estate Commission. The application was approved and he received his registration on July 8, 1974, and has been continuously registered with the Commission since that time (Petitioner's Exhibit 1.)

2. In the Application for Registration, Question 9 and Respondent's answer thereto were 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 Traffic

   offenses: see attached sheet, one misdemeanor, City of North Miami Beach, Case 23855. (Petitioner's Exhibit 1,2).

   
   

3. On August 17, 1973, Respondent was arrested in Dade County, Florida, and charged with the possession and sale of cocaine in violation of Section 893.13(1)(a), F.S. On May 31, 1974, Respondent was acquitted in the Circuit Court of the Eleventh Judicial Circuit of Florida, In and for Dade County, of the charge of sale or delivery of a controlled substance. In the same court, on July 12, 1974, he was found guilty of the charge of possession of a controlled substance, but adjudication of guilt was withheld and Respondent was placed on probation for a period of three years. (Petitioner's Exhibits 3, 4, 5, 6.)

   
   

4. Petitioner testified that he had filed a prior application for registration as a real estate salesman in 1972 which was not approved because he did not pass the written examination. In 1974, he secured a blank application form which he gave to his father, Hal Sehres, to have typed for him. When it was prepared, he scanned it without reading it thoroughly and, since it seemed to be the same as his first application, he signed it and his father thereafter dispatched it to the Commission.

   
   

5. The father testified that he had given the blank application to his secretary, along with the 1972 application, and asked her to type it. He also provided her with minor changes in address and information concerning the misdemeanor offense which had not occurred at the time the 1972 application had been executed. Although the father testified that he was aware his son had been arrested in 1973 for the sale and possession of cocaine, and that he meant to include it as part of the answer to Question 9, he knew that at that time disposition had not yet been made of the charge, and therefore, believed it was an honest mistake that he had not included it on the application.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner's complaint alleges that by reason of Respondent's failure to show his arrest for possession and sale of cocaine on his application for registration he does not possess the necessary qualifications of honesty, truthfulness, trustworthiness, and good character as required by Section 475.17(1), F.S., for registration and is guilty of concealment in obtaining his registration or certificate as a real estate salesman in violation of Section 475.25(2), F.S., which provides in pertinent part as follows:

   (2) The registration of the 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 . . .

   
   

7. In order to determine whether Respondent's registration was obtained by concealment, as alleged, there must be a showing that material information was knowingly omitted from the application form and that its inclusion would have been grounds for denial of registration under Section 475.17(1). The latter provision states that an applicant shall be deemed not to be qualified if he has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending registration under Chapter 475 had he then been registered, unless because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it shall appear to the Commission that the interest of the public and investors will not likely be in danger by the granting of the registration. By reason of Respondent having been found guilty by the Circuit Court for the Eleventh Judicial Circuit of a crime against the laws of Florida involving moral turpitude, i.e., possession of a controlled substance, this fact would have constituted grounds for suspending registration under Section 475.25(1)(e), had the applicant then been registered. Although Respondent and his father maintain that the failure to list the arrest for possession and ale of cocaine under Question 9 of the application was a result of carelessness or inadvertence, this contention is not deemed credible in view of the listing of the earlier misdemeanor offense, and the potentially adverse consequences of listing the later felony arrest.

   
   

8. The Commission's concern with accuracy in answering Question 9 is shown by the fact that the first page of the application form at the very top sets forth the words "PLEASE NOTE: Answer question #9 very carefully and attach explanation if necessary." In the instructions on the first page of the application, it is stated "Every answer to questions hereinafter made states the truth and the full truth concerning the subject of the inquiry, so far as known or can be ascertained." And after Question 11 on the application, the parenthetical expression appears "(If your answer to any of question 9, 10, or

   11 is in the affirmative - "Yes" or its equivalent-attache hereto your complete signed statement of charges and facts, together with the name and location of the court in which the proceedings were had or are pending.)" And finally, the affidavit of applicant on the last page of the application includes the admonition that the individual has "carefully read the foregoing application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are complete as his knowledge, information and records permit, without any evasion or mental reservations whatsoever." All of the foregoing caveats which are placed prominently on the application put the applicant on notice as to his responsibilities in executing the same, and it is therefore inconceivable that a matter of such serious consequence as an arrest for possession and sale of cocaine could be inadvertently omitted. Accordingly, it is determined that Respondent intentionally concealed information concerning his arrest.

   
   

9. It is therefore concluded that Respondent obtained his registration as a real estate salesman by means of concealment and that, under the mandatory language of Section 475.25(2), his registration must be revoked.

RECOMMENDATION

That the registration of Irving Paul Sehres as a real estate salesman be revoked, pursuant to Section 475.25(2), Florida Statutes.

DONE AND ENTERED this 11th day of February 1976 in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of February 1976.

COPIES FURNISHED:

Louis B. Guttman, III, Esquire 2699 Lee Road

Winter Park, Florida 32789

Seymour Silverman, Esquire

420 Lincoln Road

Miami Beach, Florida 33139

Docket for Case No: 75-001883

Orders for Case No: 75-001883