STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

W. WESLEY WALLACE, )

)

Petitioner, )

)

vs. ) CASE NO. 76-847

)

DONNA S. HOROWITZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on September 16, 1976, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Manuel E. Oliver, Esquire

2699 Lee Road

Winter Park, Florida 32789

For Respondent: Peter A. Portley, Esquire

2745 East Atlantic Boulevard Pompano Beach, Florida 33062

The Florida Real Estate Commission, (Commission), through its representative, Harold L. Clark (Plaintiff) filed an administrative complaint against Donna S. Horowitz (Defendant) on July 23, 1975. The Commission seeks to revoke, suspend, or otherwise discipline the Defendant, a registered real estate broker, on the basis that as alleged in the administrative complaint, Defendant on January 2, 1973, filed with the Commission her sworn application as a real estate broker. Question. number 9 of the application reads as follows:

"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? If yes, state details in full:"

Defendant answered question number 9 "No". Thereafter Defendant's application was approved and she subsequently received her registration as a real estate broker. It is alleged that the Defendant, at the time of the execution of the application as aforesaid, knew that her answer to question number 9 was false and untrue and that she failed to reveal, disclose or fully explain the following arrest:

An arrest on May 16, 1970, by the Deerfield Beach, Florida, police department for violation of City Ordinance 633, Section 2, possession of narcotics in the City of Deerfield Beach, Broward County, Florida. The complaint alleges that by reason of the foregoing it appears that the Defendant is guilty of obtaining her registration by means of fraud, misrepresentation or concealment, in violation of s. 475.25(2), Florida Statutes.

On August 29, 1975, Defendant's counsel filed a motion to quash with the Commission which was denied on September 18, 1975. Thereafter on May 12, 1976, Defendant's counsel filed a motion for discharge alleging that Petitioner had violated Defendant's constitutional and statutory rights to a speedy trial and that it is thereby prohibited from proceeding to prosecute any and all matters alleged in the administrative complaint filed herein. This motion was filed at the hearing and is now being referred to the Commission for decision.

The Commission introduced into evidence a copy of an arrest record by the clerk of the Municipal Court of Deerfield Beach, Florida, attesting to the arrest of Defendant on May 16, 1970, charged with violation of the City Ordinance 633, Section 2, possession of narcotics in the City of Deerfield Beach, Broward County, Florida, on the 16th day of May, 1970. Defendant's counsel objected to the introduction first of all on the grounds that it was hearsay and secondly because it does not in this case "properly or accurately reflect what is in fact contained in the records of the City of Deerfield Beach." He stated that this was so because there was a Court order, dated September, 1975, removing said record from its records, and therefore, while it is customary that an official document of a City bearing its seal is entitled to admission into evidence because it reflects what is contained in its files and records, in this particular case evidence in the City's file indicate that the document has been removed from the City. Defendant's counsel introduced an order of the City of Deerfield Beach Municipal Court dated December 22, 1975, directing that all official records relating to the arrest of the Defendant, indictment or information, trial and dismissal charge as it relates to the allegations contained in the Commission's administrative complaint be expunged from the official records of the Deerfield Beach police department as well as the Municipal Court records in the City of Deerfield Beach, Florida. To buttress its argument that the records relating to the Defendant's arrest should not be introduced, Defendant's counsel cited Florida Statutes 901.33 which states in essence that "once records have been expunged one does not have to answer any questions and that there can be no penalties attached to the failure to affirmatively relate that arrest." Counsel went on to state that "no person as to whom such order has been entered shall be held thereafter under any provisions of Florida Law to be guilty of perjury or otherwise giving a false statement by reason of his failure to recite or acknowledge such arrest in response to any nonjudicial inquiry made of him for any purpose". The Commission's counsel noted during the hearing, that the same arguments were made during the hearing on the Defendant's motion to quash and it was pointed out that at the time the Defendant filed her application for real estate broker, the records had not been expunged and therefore the arrest record was in effect at the time said application for registration was filed with the Commission.

There is no doubt that the Defendant, licensee, Donna S. Horowitz is now and was at all times alleged herein a registered real estate broker with the Commission since on or about February 20, 1973. S. 475.25(2), Florida Statutes, permits the Commission to revoke a registration "if such registration, or a certificate issued thereon, is found to have been obtained by the registrant by means of fraud, misrepresentation or concealment." The Commission, by and

through its counsel, in answer to Defendant's motion for production of documents and information admitted that it had no policy, regulation, custom and/or practice which precludes the issuance of a real estate broker's license solely for the reason that the applicant had previously been arrested on charges which were subsequently dropped without prosecution and without a determination of guilt or innocence. The Commission, in addition, admitted that it did not have any policy, regulation etc., which permit it to effectuate a suspension of a license solely for the reason that the licensee had previously been arrested on charges which were subsequently dropped without prosecution and without a determination of guilt or innocence.

The issue posed herein is somewhat analogous to the law relating to insurance policies. Section 627.01081 of the Insurance Code (Chapter 627, Florida Statutes). See for example Home Insurance Company v. Drescher, FLA. APP, 1968, 210 So.2d 451. That chapter which deals with representations in applications for insurance, provides: "Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either: (1) fraudulent; or (2) material either to the acceptance of the risk or to the hazard assumed by the insurer; or

1. the insurer in good faith would either not have issued the policy or contract or would not have issued it at the same premium rate or, would not have issued the policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application by the policy or contract or otherwise." Also see Kozerowitz v. A.J. Stack and the Florida Real Estate Commission, 219 So.2d 469. In the absence of an allegation of showing of some established policy or regulation which would preclude a registrant who failed to disclose an arrest, which in this case, the Defendant acting upon the advice of counsel was advised that she need not disclose the arrest which in this case was Nolle Prossed, there has been no showing that the Commission would not have issued license to the Defendant in this case, nor has it been shown that the certificate was "obtained" by or because of the concealment of that fact; and the undersigned is therefore of the conclusion that the allegations of the administrative complaint have not been established.

   
   

   CONCLUSIONS OF LAW

   
   

   1. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action.

      
      

   2. The burden of proving that a licensed real estate broker has violated the real estate licensing law lies with the Florida Real Estate Commission, or its representative. State ex rel., Vining v. Florida Real Estate Commission, 281 So.2d 487.

      
      

   3. Insufficient evidence was offered to establish that the Defendant obtained her license by concealment, fraud, misrepresentation or by some other means as defined in Florida Statutes 475.25(2).

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended: that the complaint filed herein be dismissed in its entirety.

RECOMMENDED this 21st day of October, 1976, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Peter A. Portley, Esquire 2745 East Atlantic Boulevard Pompano Beach, Florida 33062

Manuel E. Oliver, Esquire 2699 Lee Road

Winter Park, Florida 32789

Docket for Case No: 76-000847

Orders for Case No: 76-000847