STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 81-2095

)

MICHAEL TIMOTHY MCKEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this matter on November 4, 1981, in Plantation Key, Florida. The following appearances were entered: Harold W. Braxton, Miami, Florida, appeared on behalf of the Petitioner, Department of Professional Regulation, Board of Real Estate; Arthur L. Miller, Miami, Florida, appeared on behalf of the Respondent, Michael Timothy McKee.

On or about July 16, 1981, the Department of Professional Regulation, Board of Real Estate, filed an Administrative Complaint against the Respondent, Michael Timothy McKee. The Respondent requested a formal administrative hearing. The matter was forwarded to the office of the Division of Administrative Hearings, and filed on August 25, 1981. By notice dated September 29, 1981, the final hearing was scheduled to be conducted as set out above.

At the final hearing, Petitioner's Exhibits percent, 2 and 3 were offered into evidence and were received. The Respondent testified as a witness on his own behalf. Respondent's Exhibit 1 was offered into evidence, and was rejected. The parties have submitted posthearing legal memoranda. The Petitioner's memorandum includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are specifically included in the Findings of Fact and Conclusions of Law which follow. They have otherwise been rejected as not supported by the evidence, irrelevant to the issues, or erroneous as a matter of law.

The issue in this proceeding is whether the Respondent has violated the provisions of Florida law pertaining to licensure of real estate salesmen, and, if so, whether his license should be suspended or revoked, or whether he should be otherwise disciplined.

FINDINGS OF FACT

1. The Respondent holds Real Estate Salesman's License No. 0355517 issued by the Board of Real Estate. Petitioner is employed as a real estate salesman at Norma Star Realty, Key Largo, Florida.

2. During October, 1980, the Respondent applied for licensure as a real estate salesman with the Board of Real Estate. His application was approved, and the Respondent was admitted to the examination, which he passed. The Board of Real Estate issued a real estate salesman's license to the Respondent during December, 1980.

   
   

3. In applying for licensure, the Respondent filled out the Board of Real Estate's standard application form. Paragraph 6 of the form sets out the following inquiry:

   
   

   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?

   
   

   The Respondent answered "No" to this inquiry.

   
   

4. The Respondent has been arrested on several occasions. On July 29, 1964, he was arrested in Las Vegas, Nevada, on a charge of sodomy. On August 6, 1964, he was arrested in Las Vegas, Nevada, on a charge of rape. On May 22, 1966, he was arrested in Las Vegas, Nevada, on the charge of notorious cohabitation. On January 31, 1969, he was arrested in Miami, Florida, on the charge of board bill fraud. All of these charges were ultimately dismissed.

   The Respondent was neither tried nor convicted in connection with any of the charges.

   
   

5. The Respondent had been licensed as a real estate salesman in the State of Michigan. While in Michigan, he retained counsel, now deceased, who advised him that all of the Las Vegas arrests had been expunged from the Respondent's record, and that the Respondent could respond in the negative to inquiries as to whether he had ever been arrested.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.57(1), 120.60, Florida Statutes.

   
   

7. Section 475.25(1)(m), Florida Statutes, provides in pertinent part:

   
   

   1. The board may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

      * * *

      (m) Obtained a license by means of fraud, misrepresentation, or concealment. . .

      
      

      Respondent's answer to paragraph 6 of the Board's application for licensure was erroneous. It does not, however, appear that the Respondent obtained his license by means of fraud, misrepresentation or concealment. Respondent was

      entitled to rely upon the advice of his lawyer that the Las Vegas arrests had been expunged from his record, and that he could state that he had never been arrested. As to the Miami arrest, the Respondent had no such justification. However, it does not appear that the Miami arrest could have served as the basis for the Board's denying Respondent's application for licensure. Section 475.17(1), Florida Statutes, provides that an application for licensure should be denied if an applicant has been guilty of conduct or practices which would have been grounds for revoking or suspending his license had he been registered. The mere fact of an arrest does not constitute grounds under Section 475.25, Florida Statutes, for revoking or suspending a real estate license. Although the Respondent answered paragraph 6 erroneously, it does not appear that he did so fraudulently, nor that he would or could have been denied licensure had he answered the question correctly. It cannot, therefore, be said that he obtained his license by means of fraud, misrepresentation or concealment.

      
      

8. Petitioner has filed a Motion to Strike the memorandum of law that was submitted by the Respondent subsequent to the hearing. The memorandum was submitted in lieu of closing arguments, and based upon a schedule that all parties agreed upon at the conclusion of the final hearing. Nothing in the Administrative Procedure Act prohibits the filing of such memoranda, and the practice is specifically condoned under the Model Rules of Procedure. Rule 28- 5.401, Florida Administrative Code. The Motion to Strike is hereby denied.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby

RECOMMENDED:

That a final order be entered by the Department of Professional Regulation, Board of Real Estate, dismissing the Administrative Complaint filed against the Respondent, Michael Timothy McKee.

RECOMMENDED this 10th day of December, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 10th day of December, 1981.

COPIES FURNISHED:

Harold W. Braxton, Esquire

45 S.W. 36th Court Miami, Florida 33135

Arthur L. Miller, Esquire 9101 S.W. 66th Terrace Miami, Florida 33173

Mr. Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Carlos B. Stafford Executive Director Board of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-002095

Orders for Case No: 81-002095