STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA ANN BISQUE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2168

) FLORIDA BOARD OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings, by its designated hearing officer Michael Pearce Dodson, held a public hearing in this case on January 8, 1980, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Edward F. O'Connor, Esquire

125 Worth Avenue, Suite 308 Palm Beach, Florida 33480

For Respondent: Salvatore A. Carpino, Esquire

Staff Attorney

Florida Board of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 33802

These proceedings began on October 19, 1979, when the Petitioner requested a hearing on Respondent's denial, dated September 11, 1979, of Petitioner's application for registration as a real estate salesman with the Florida Board of Real Estate. On October 25, 1979, the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a Hearing. By notice to all parties, the Hearing was scheduled for January 8, 1980.

At the commencement of the Hearing, the Florida Board of Real Estate (Board) stipulated that the applicant was duly qualified for registration except for her failure to affirmatively demonstrate that she is honest, truthful, trustworthy of good character and bears a good reputation for fair dealing as required by Section 475.17 Florida Statutes (1977).

The issue in this proceeding is whether or not the applicant, Barbara Ann Bisque, should be denied registration due to her failure to disclose on her application that she had been twice arrested for exposing sexual organs in a public place; that the charges were subsequently changed to disorderly conduct; that she entered a plea of nolo contendere to them and was adjudicated guilty.

The Petitioner presented herself as her only witness and offered no exhibits. The Respondent offered exhibits A, B, C and D, which were received without objection into evidence.

FINDINGS OF FACT

1. By an application dated February 19, 1979, Petitioner, Barbara Ann Bisque, applied for registration as a real estate salesman with the Florida Board of Real Estate.

   
   

2. Question number 6 on the application asked: "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, (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned, or paroled?" To that question Petitioner answered "Yes." If a "Yes" answer is provided the applicant was asked to state the details including the outcome in full. She wrote, "forgery-not convicted- probation" and attached an explanation.

   
   

3. Her explanation on a separate sheet of paper stated: "To Whom It May Concern,

   The actual charge was uttering a forged or false instrument.

   
   

   The incident occurred in August of seventy- seven. It involved my sister and I. We were shopping at Burdines and found a credit card in the cosmetic department and attempted to purchase clothes with it.

   
   

   We were observed by security, approached, and later arrested.

   
   

   I went to court and was not convicted but placed on two years probation. I served for eighteen months and was released for good behavior."

   
   

   (Signed)

   Barbara Ann Bisque

   
   

4. Her application failed to disclose that on October 30, 1973, in Broward County Court in Case Numbers 73-33224MM and 73-17493MM she pled nolo contendere to two charges of disorderly conduct. These charges were reduced from initial charges of indecent exposure. She was adjudged guilty and sentenced to a fine and costs.

   
   

5. As a result of her failure to disclose her two arrests for indecent exposure and conviction for disorderly conduct, the Respondent Board denied Petitioner's application for registration.

   
   

6. Petitioner failed to disclose the two arrests for indecent exposure and her convictions for disorderly conduct due to her mistaken belief that Question number 6 was concerned only with arrests or charges for offenses committed while an adult. It is her recollection that in 1973, at the time of her arrest, she

   was legally a minor. For this reason, she chose not to disclose those incidents on her application. Her belief, while legally naive, is given credibility by the fact that she did freely disclose her arrest and subsequent probation for forgery.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner was charged with failing to make it appear that she is honest, truthful, trustworthy and of good character and that she bears a good reputation for fair dealing, or that she is competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom she may undertake the relationship of trust and confidence.

   
   

8. Because of Ms. Bisque's misunderstanding of Question number 6 on the application form, it is concluded that there is insufficient evidence to establish that she willfully intended to deceive the Board through her incomplete answer on her application. Florida Real Estate Commission vs. Mazon,

   1 F.A.L.R. A114 (D.O.A.H. Case No. 78-1622, October 26, 1978); Florida Real Estate Commission vs. Marin, 1 F.A.L.R. A669 (DOAH Case No. 78-1509, May 8, 1979).

   
   

9. The evidence did not establish that the Board would have denied Petitioner's application if she had answered all the questions on the form completely.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the application as submitted by Barbara Ann Bisque be denied, but without prejudice to her filing a new application to demonstrate that she meets the requisite qualifications for licensure as a real estate salesman and that the Board take such further action on the new application as appropriate.

DONE and ENTERED this 4th day of February, 1980, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

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

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1980.

COPIES FURNISHED:

Edward F. O'Connor, Esquire

125 Worth Avenue, Suite 308 Palm Beach, Florida 33480

Salvatore A. Carpino, Esquire Staff Attorney

Florida Board of Real Estate

400 W. Robinson Street Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 79-002168

Orders for Case No: 79-002168