STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-189

)

CHARLES LOREN McLAIN )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, assigned Hearing Officer of the Division of Administrative Hearings, on April 12, 1976, in the Florida Real Estate Commission Hearing Room, Third Floor, in the State Office Building at 400 West Robinson Street in Orlando, Florida.

APPEARANCES

For Petitioner: Kenneth M. Meer, Esquire

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Clifton L. Howell, Jr., Esquire

1165 First Street South Post Office Box 9114

Winter Haven, Florida 33880

ISSUE

Whether the Respondent, Charles Loren McLain, obtained his certificate of registration as a real estate salesman, License #0186545, by means of fraud, misrepresentation or concealment, and whether his license should be revoked or suspended or he should be otherwise disciplined.

FINDINGS OF FACT

1. Respondent Charles Loren McLain is a registered real estate salesman doing business in Sebring, Florida. An administrative complaint was filed by the Petitioner Commission against the Respondent on August 14, 1978, alleging that he had procured his license without making a full disclosure of previous arrests or charges against him. An administrative hearing was requested.

   
   

2. Respondent McLain filed an application with the Florida Real Estate Commission to register as a real estate salesman in late 1977. On the application Respondent answered Question No. 6, "Have you ever been arrested for, or charged with, the commission of an offense against the laws of a

   municipality, state or nation, including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled?" In answer thereto Respondent answered "Yes." The next question stated, "If yes, state details including the outcome in full." to which question Respondent answered, "Unarmed robbery, sentenced two years in Mansfield Reformatory, Mansfield, Ohio see attached copy." Respondent was allowed to take the examination, and has held a license and practiced as a salesman for the past two years.

   
   

3. Pursuant to an investigation, evidence of a number of other arrests and convictions were introduced into evidence at the hearing by means of certified copies of arrest records and judgments. Respondent McLain did not deny that these records applied to him, but he explained how some of the charges were incorrect. He also submitted a copy of a letter he wrote in May of 1977, which he attached to his application for registration, and which indicated that he had made a search for past police records, and that all the arrests had been more than twelve (12) years ago and were related to drinking alcohol. In this letter he stated that he felt he was completely rehabilitated to the point that he did not drink anymore and requested that the Petitioner Commission allow him to take the salesman's examination.

   
   

4. Respondent McLain failed to fully disclose his police record on his application for licensure, however, the Petitioner Commission was on notice that he had had problems in the past. The numerous arrests and charges were not disclosed on the application itself but were referred to in an attached letter. The record covered a period of time from 1954 to 1965, and showed serious offenses.

   
   

5. Petitioner Commission allowed the Respondent to take the examination after he filed the application and, upon his massing of the examination, issued him a license. He has been in business for more than two years, and there is no evidence that he has had problems or charges filed against him since he was licensed.

   
   

6. Both parties submitted memoranda of law, and these instruments were considered in the writing of this Order.

CONCLUSIONS OF LAW

7.. The Division of Administrative Hearings has jurisdiction in this cause pursuant to Section 120.57, Florida Statutes.

1. Section 475.25, Florida Statutes, provides:

   
   

   (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 . . .

   
   

2. Respondent McLain notified the Petitioner Commission of his past record and was allowed to take the examination, and he has had no complaints filed against him since that date. Be is not in violation of the fore-going statute.

RECOMMENDATION

Based upon the foregoing findings of Fact and Conclusions of Law, the Hearing Officer recommends that the charges against the Respondent, Charles Loren McLain, be dismissed.

DONE and ORDERED this 29th day of June, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Kenneth M. Meer, Esquire Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Clifton L. Howell, Jr., Esquire 1165 First Street South

Post Office Box 9114

Winter Haven, Florida 33880

Docket for Case No: 79-000189

Orders for Case No: 79-000189