STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2012

)

JUAN A. VERGEL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on October 7, 1981, in the State Regional Office Center, 401 Northwest 2nd Avenue, Miami, Florida. The issue for determination at the hearing was whether disciplinary action should be taken against the respondent as a real estate salesman for the reasons that he does not possess the minimum qualifications for licensing because he is not honest, truthful, trustworthy and of good character as required by Section 475.17(1), Florida Statutes, and is guilty of having obtained the issuance of a real estate license by means of fraud, misrepresentation and concealment in violation of Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint dated July 16, 1981.

APPEARANCES

For Petitioner: Michael Colodny, Esquire

Colodny and Fass, P.A. 626 North East 124 Street

North Miami, Florida 33161

For Respondent: Samuel Sheradsky, Esquire

606 Coconut Grove Bank Building 2701 South Bayshore Drive Miami, Florida 33133

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The respondent Juan A. Vergel is the holder of Florida real estate salesman's license No. 0359274. This license was received pursuant to respondent's application for licensure dated December 8, 1980, and approved on January 28, 1981.

   
   

2. In response to question number 6 on his application for licensure as a real estate salesman, respondent answered "No." This question read 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 (but not parking speeding, inspection or traffic signal viola tions), without regard to whether convicted, sentenced, pardoned or paroled?"

   
   

3. On or about February 5, 1975, respondent was arrested by the Public Safety Department of the Dade County Sheriff's Office on the felony charge of buying, receiving and concealing stolen property; to wit: an automobile inspection sticker. On February 24, 1975, respondent pled guilty to a reduced misdemeanor charge of buying, receiving and concealing stolen property, was adjudicated guilty and was ordered to pay a fine of $50.00 by the County Court of Dade County, Florida.

   
   

4. At the time of this adjudication, respondent was of the impression, from discussions with his attorney, that if he maintained a record without any charges of criminal activity for a period of nine months, the arrest and conviction on the misdemeanor offense of buying, receiving and concealing stolen property would be expunged from his record. Having had no criminal charges against him after this incident, respondent assumed at the time he completed his application for a real estate license that his record had been cleared.

   
   

5. Other than the offense described in paragraph 3 above, respondent has never had criminal charges against him. He has been employed as a computer operator with the Dade County School Board for eleven years and has had no problems in such employment.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Administrative Complaint filed in this cause seeks to suspend, revoke or take other disciplinary action against the respondent on the ground that he does not possess the minimum qualifications for licensing as a real estate salesman because he is not honest, truthful, trustworthy and of good character as required by Section 475.17(1), Florida Statutes, and he is guilty of obtaining his license by means of fraud, misrepresentation and concealment in violation of Section 475.25(1)(m), Florida Statutes.

   
   

7. In disciplinary proceedings against a licensee, the burden of proving that a violation of applicable law has occurred is upon the licensing agency. The petitioner in this proceeding has not sustained its burden of proof.

   
   

8. The evidence in this case did not establish that the Board of Real Estate would have denied respondent's application for licensure if he had correctly answered question number 6, thus providing the information that he had been convicted of the misdemeanor offense of buying, receiving and concealing stolen property; to wit: an automobile inspection sticker, over five years prior to the time the application was filed. That being the case, it cannot be concluded that respondent obtained his license by means of fraud, misrepresentation or concealment in violation of Section 475.25 (1)(m) , Florida Statutes.

9. In addition, the testimony indicates that respondent did entertain the impression that his record would be cleared of this offense if he maintained good behavior for the following nine-month period. While this impression, without further action on his part, may have been legally naive, it was not unreasonable given the fact that respondent has had no prior or subsequent criminal charges against him. The offenses of fraud, misrepresentation and concealment require intent. The petitioner failed to demonstrate that respondent entertained the requisite intent to obtain his real estate license by means of fraud, misrepresentation or concealment within the meaning of the prohibition of Section 475.25(1)(m), Florida Statutes.

   
   

10. The undersigned has fully considered the proposed findings of fact and orders submitted by each of the parties. To the extent that the proposed findings of fact are not included in this Recommended Order, they are rejected as being either irrelevant and immaterial to the issues for determination, not supported by competent, substantial evidence or as constituting findings of fact as opposed to conclusions of law.

RECOMMENDATION

For the reasons stated above, it is RECOMMENDED that the Administrative Complaint filed against the respondent Juan A. Vergel be DISMISSED.

Respectfully submitted and entered this 23rd of October, 1981, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1981.

COPIES FURNISHED:

Michael Colodny, Esquire Colodny and Fass, P.A.

626 N.E. 124 Street

North Miami, Florida 33161

Samuel Sheradsky, Esquire

606 Coconut Grove Bank Building 2701 South Bayshore Drive Miami, Florida 33133

Frederick H. Wilsen, Esquire Department of Professional Regulation

Board of Real Estate

130 North Monroe Street Tallahassee, Florida 32301

Juan A. Vergel

12510 Southwest 33rd Street Post Office Box 650971 Miami, Florida 33165

Carlos V. Stafford, Executive Director Board of Real Estate

400 West Robinson Street Orlando, Florida 32789

Docket for Case No: 81-002012

Orders for Case No: 81-002012