FLORIDA REAL ESTATE COMMISSION ) ex rel. CHARLES E. KIMMIG, SR., )
vs. ) CASE NO. 75-2015
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the aboye styled cause on January 30, 1976 at Winter Park, Florida.
For Petitioner: Frederick W. Jones, Esquire
For Respondent: Respondent was not present.
By information filed August 13, 1975 the Florida Real Estate Commission ex rel. Charles E. Kimmig, Sr. seeks to revoke the Real Estate Salesman License issued to Jesse Eugene Moore on the grounds that on his application for registration Respondent failed to report certain arrests and charges and thereby obtained his registration as a real estate salesman by means of fraud, misrepresentation or concealment. Section 475.25(2) Florida Statutes makes this grounds for revocation of a license.
At the hearing Petitioner presented evidence of service of the complaint and notice of hearing by mailing same, to Respondent's last address reported to the Real Esate Commission, by registered mail as provided by s.
475.26 Florida Statutes. Accordingly I find Respondent was duly subjected to the jurisdiction of the hearing officer and of the Real Estate Commission.
Thereafter Petitioner presented as Exhibit 4, the Certification of the Executive Director of the Florida Real Estate Commission that registration certificate number 0119992 was issued to Jesse E. Moore as a real estate salesman on January 30, 1974, that a non-active salesman's registration was issued on June 10, 1974 to expire September 30, 1974, and a copy of his application for registration subscribed and sworn to by Moore on July 9, 1973. Thereon Respondent listed only two offenses under question 9, viz. DWI and a bad check offense.
Petitioner submitted Exhibits 5, 6, and 7 which were only admitted into evidence. Exhibit 5 shows that on November 20, 1961 Gene Moore was found guilty in the County Judge's Court of destroying personal property and fined $15.00 to include $12.50 costs. Exhibit 6, a Justice of the Peace Docket Sheet purports to show that on September 11, 1969 Jesse E. Moore was charged with failure to report sales tax, and Exhibit 7, a similar docket sheet purports to show that on October 30, 1969 Jesse E. Moore was again charged with failure to report sales tax. Since both Exhibits 6 and 7 show the same amount of sales tax it may be assumed that they relate to the same offense. However, Exhibit 6 indicates that the bond posted in the amount of $12.50 was forfeited and the final entry on Exhibit 7 is that the charge (if such it be) was dismissed by the judge. Although these docket sheets are subject to some question regarding their relevance in proving that the person named thereon was charged with an offense against the laws of Florida, for the purpose of this Recommended Order it is found that they do prove that Jesse E. Moore was charged with such offenses.
CONCLUSIONS OF LAW
Respondent is charged with having obtained his registration by means of fraud, misrepresentation or concealment. Section 475.25(2), Florida Statutes provides in pertinent part:
"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 . . ."
Section 475.17 Florida Statutes in listing the qualifications of applicants for registration provides in part:
"If it shall be made to appear ... that the appli- cant has been guilty of conduct or practice in
this state which would have been grounds for revoking or suspending registration under this chapter had the registrant been registered, the applicant shall be deemed to be not qualified..."
Grounds for revocation or suspension of a license are contained in Section 475.25 which provides in part that a registration may be suspended if the registrant has
"(a) been guilty of fraud, misrepresentation, false promises, false pretenses, dishonest dealings, trick, scheme or device, culpable negligence or breach of trust in any business transaction; or
violated any of the provisions of this chapter or any lawful order, rule or regulation made or issued under the provisions of this chapter; or
Been guilty of a crime against the laws of this state or any other state or of the United States, involving moral turpitude, or fraudulent or dishonest dealing;"
Thus, one ground for revocation of a registration is that the registrant obtained his license by concealing the commission of an offense which would have
disqualified him had the facts involving the offense been known. Applying the above quoted provisions of the statute to the instant case the question to be resolved is: Had the applicant listed on his application the offenses to which Exhibits 5, 6, and 7 relate, would the Commission have been justified in denying his application? If so, then his registration is subject to revocation pursuant to s. 475.25(2) Florida Statutes above quoted. If not, then his registration is not subject to revocation under the provisions of the statute. Unless a finding of guilt of the offenses referred to in Exhibits 5, 6, and 7 would have been grounds for denial of Moore's application, his failure to include those charges on his application could not have affected the approval of his application.
This leaves the question whether or not any of the offenses to which Exhibits 5, 6, and 7 relate would constitute grounds for suspension of a license if a registrant were found guilty of their commission. As noted above, Exhibit
5 relates to destruction of personal property and since it was tried in County Court, the offense was treated as a misdemeanor. It apparently involved no fraud etc. in a business transaction, nor does it constitute a crime involving moral turpitude. (Section 475.25(1)(e) Florida Statutes)
Assuming Exhibit 6 and 7 involve separate transactions and registrant were guilty of these offenses, that would not constitute grounds for suspension under Section 475.25(1) Florida Statutes. Section 212.12 Florida Statutes provides penalties for failure to report sales tax. It further provides that false or fraudulent return or willful intent to evade payment constitutes a misdemeanor in the second degree, the maximum punishment for which is sixty days confinement. Accordingly the commission of these offenses would not constitute crimes involving moral turpitude or constitute fraud, etc. in business dealings.
In Koserowitz v A. J. Stack and the Florida Real Estate Commission 219 So.2d 469 (Fla. App 1963) the Commission sought to revoke registrant's certificate as a real estate salesman on the ground that in answering "no" to a question on his application pertaining to having done business under another name, which answer was false, he had obtained a certificate by means of misrepresentation and concealment in violation of Section 475.25(2) Florida Statutes. The court stated:
"That count fails to show that the incorrect or false answer to the question as to the use of another name (which the law does not prohibit when used for proper purposes) was the basis or cause of the issuance of the renewal certificate.
There is no allegation that the renewal would
not have been issued if the fact of use of another name on some prior occasion or occasions had been disclosed. In the absence of such an allegation or a showing or allegation of some established policy or regulation which would preclude a registrant who previously had used another name from being entitled to obtain a renewal certifi- cate, the count maes no sufficient showing that the renewal certificate was 'obtained' by or because of the concealment of that fact; and
the statement that it was, as an unsupported conclusion, did not serve to cure that material defect in the count."
While the possibility exists that the registration of Moore could have been suspended pursuant to Section 475.25(1)(d) Florida Statutes for violating any provision of Chapter 475, Florida Statutes or rules of the Commission (e.g. Rule 21 V-2.01 FAC) he was not charged under this provision, of the statute and this provision is therefore not available to these proceedings.
From the foregoing it is concluded that the registration of Jesse Eugene Moore cannot be revoked pursuant to Section 475.25(2), Florida Statutes on the grounds that he failed to list on his application all of the offenses of which he had been charged. This is so despite his failure to defend the charges brought against him.
On the other hand it is noted that registrant's certificate expired September 30, 1974 and there is no indication that any application for renewal was made. Rule 21 V-7.04 F.A.C. provides:
"Any person who has not requested a renewal and paid the fee on or before six months
from date of certificate is no longer entitled to renew his registration. Any such person who thereafter desires to become a registrant may file an application if, under the law and these rules, he is eligible to do so."
(It is understood that the 6 months has been extended to 12 months by a recent change to the above rule which has not as yet been distributed.)
It thus appears that Moore has forefeited his registration and in order to again be registered he would have to apply as a new applicant. It is therefore,
RECOMMENDED that the Information filed against Jesse Eugene Moore on August 13, 1975 be dismissed.
DONE and ENTERED this 20th day of February, 1976 in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
