STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CASIMIR M. SZPAK, FLORIDA REAL ) ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2016

)

RICHARD E. EBNER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice in Room 203, St. Lucie County Courthouse, Fort Pierce, Florida, at 9:30 A.M. on February 27, 1976, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

This case arose upon the Administrative Complaint and Notice of the Florida Real Estate Commission to the Respondent, Richard E. Ebner, charging that Ebner had obtained his license by fraud, misrepresentation or concealment. The Respondent requested a formal hearing and the Florida Real Estate Commission referred the matter to the Division of Administrative Hearings to conduct the hearing.

APPEARANCES

For Petitioner: Frederick W. Jones, Esquire

Staff Counsel

Florida Real Estate Commission 2699 Lee Road

Winter Park, Florida 32789

For Respondent: C. R. McDonald, Jr., Esquire

Law Offices of McDonald & Kenney Suite 200, Citizens Federal Building 1600 South Federal Highway

Fort Pierce, Florida 33450 PRE-HEARING MOTION

Prior to hearing the Respondent pled his Motion to Quash the charges against him. The Hearing Officer having considered the motion and the grounds denied the Motion to Quash.

FINDINGS OF FACT

1. The parties stipulated that Richard E. Ebner was registered as a real estate salesman on March 8, 1974 and has been so registered since that date having been issued license No. 0126254, that said license was applied for by

   Ebner, who prepared the application, which was jointly stipulated to be received into evidence as Exhibit 1.

   
   

2. The parties further stipulated to the fact that Exhibit 1 contains question 9, as set forth in the Administrative Complaint in paragraph 2, and question 19, as set forth in the Administrative Complaint in paragraph 6, and that Ebner had answered question 9, "Yes. . . Midsdemeanor - Marijuana possession 1971," and question 19, "No."

   
   

3. The parties further stipulated to the admission into evidence of Exhibit 2, Court Records of Arrest dated September 25, 1970; Exhibit 3, Court Records of Information dated September 29, 1970; and Exhibit 6, Court Records, Order of Incompetency. It was stipulated that an Order of Nolle Prosequi had been entered regarding the charges upon which the arrest, Exhibit 3, were based.

   
   

4. The Commission offered Exhibit 4, a letter of Sheriff Collier dated January 12, 1974; and Exhibit 5, a judgment in Case No. 676 dated August 17, 1971, which were received into evidence.

   
   

5. Thereafter on the basis of the stipulation and admission of Exhibits 5 and 6, the Commission rested its case.

   
   

6. The Respondent then moved for dismissal of the charges because the charges were insufficient because the Commission failed to show if these matters had been disclosed the license would have been denied.

   
   

7. The Hearing Officer denied the motion.

   
   

8. The Respondent called his father and mother to testify. Richard Ebner had had in 1970 a drug problem and had been addicted to heroin. His parents searched the state for a hospital to treat their son. Having found a hospital, they went to the County Judge and explained their fears that their son might not stay in the hospital. Without a hearing, the Judge entered the Order of Incompetency, Exhibit 6. Thereafter, their son had gone to the hospital and remained there voluntarily. They both testified that their son, Richard Ebner, had no knowledge of the Judge's Order, and that they themselves were unaware of the nature of the order beyond the fact that they had been told it was sufficient to require their son to remain in the hospital if he tried to leave.

   
   

9. The Board subsequently presented rebuttal testimony on the issue of incompetency that Richard Ebner's counsel had interposed an insanity plea to the 1971 arrest based upon the Order of Incompetency, see Exhibit 9. The Court refused this defense. Richard Ebner testified that he had known about the insanity defense his attorney had presented to his 1971 arrest, but that he had had no knowledge in 1971 that he had been declared incompetent by any Court or when he filled out the application. The Commission's investigator indicated that the Court's record indicated only the Order of Incompetency and no further pleadings.

   
   

10. The Hearing Officer finds that Richard Ebner had no knowledge of the Order, Exhibit 6, adjudging him incompetent.

    
    

11. Regarding question 9, the Commission's Exhibits 2 and 3 revealed that Ebner had been arrested in 1970 for obtaining or attempting to obtain a barbiturate or central nervous system stimulant by fraud, misrepresentation, deceit or subterfuge, or by forgery or alteration of a prescription, and

    uttering any false or forged prescription. As stated above, it was stipulated that these charges were dropped.

    
    

12. The Commission's Exhibits 4 and 5 reveal that Ebner was arrested on March 30, 1971 for (1) possession if marijuana and (2) possession of marijuana paraphernalia. The charge relating to possession of paraphernalia was dropped, and Ebner was tried on possession of marijuana on June 28, 1971, found guilty and sentenced to six (6) months in the county jail. He served his sentence and was released January 12, 1972.

    
    

13. Regarding the offense, the Respondent, Ebner, had stated on his application in response to question 9, "Misdemeanor - Marijuana possession in 1971."

    
    

14. Richard Ebner is currently working for his father and brother in their family business and actively engaged in underwater salvage and repair as a hard hat (deep sea) diver. He works as long as 3 - 10 hours under water, and has performed such responsible work as maintenance of underwater cameras at a nuclear power plant. He testified that he no longer uses narcotic drugs and that to do so would jeopardize his life in his occupation as a diver.

    
    

15. The Respondent appeared relaxed and confident on the witness stand and answered questions put to him by the attorneys and Hearing Officer forthrightly and without hesitation. He admitted his addiction to drugs, stated that he had overcome this, that he had not tried to conceal his 1970 arrest but thought that because the charges had been dropped by this state that there was no need to report it. He similarly stated that he had responded to question 9 regarding the 1971 arrest, conviction and sentencing.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Florida Real Estate Commission has charged Richard Ebner with obtaining his registration as a real estate salesman by fraud, misrepresentation or concealment.

    
    

17. With regard to Ebner's response to question 19 "Have you ever been declared mentally incompetent by any court?", the Hearing Officer has found that Ebner had no knowledge of the Court's Order. If Ebner had no independent knowledge of the fact, he cannot be held to have concealed the fact.

    
    

18. Regarding Ebner's response to question 9, although the question states in part: "If yes, state details in full," Ebner's response may not have given all the details one might desire, however, it was sufficient to put the Commission on notice. Fraud, concealment, or misrepresentation cannot be applied to a dearth of details when the applicant has given sufficient details to draw the Commission's attention to the fact he has been arrested, convicted or sentenced. It did not conceal or misrepresent the fact of his arrest, conviction, and sentencing.

    
    

19. Regarding Ebner's 1970 arrest, clearly Ebner did not set out that he had been arrested or that the charges had been dropped. However, did Ebner obtain his licence by fraud, misrepresentation or concealment?

    
    

20. Clearly the Board cannot deny licensure because the applicant had been arrested where the charges were later dropped. It is therefore immaterial to Ebner's obtaining the license whether he indicated the arrest or not.

Therefore, he did not obtain his license by fraud, misrepresentation or

concealment. Again the fact Ebner did reveal those matters which would have affected his application indicates that he was not seeking to conceal relevant information relative to his application.

RECOMMENDED ORDER

The Hearing Officer recommends that Ebner's license not be revoked. DONE and ORDERED this 3rd day of March, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Frederick W. Jones, Esquire Counsel for Plaintiff

C. R. McDonald, Jr., Esquire Counsel for Defendant

Docket for Case No: 75-002016

Orders for Case No: 75-002016