STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION )

(formerly Board of Real Estate), )

)

Petitioner, )

)

vs. ) CASE NO. 81-2533

)

PATRICIA C. ALTERS, )

)

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 March 19, 1982, in Orange Park, Florida. The transcript of the final hearing was received by this Division on April 22, 1982. 1/

APPEARANCES

For Petitioner: John G. DeLancett, Esquire and

James R. Mitchell, Esquire Post Office Box 6171C Orlando, Florida 32803

For Respondent: Harry Shorstein, Esquire

Suite 605, Blackstone Building Jacksonville, Florida 32202

ISSUES

The issues posed for decision herein are whether or not, based on conduct which will be set forth hereinafter in detail, the Respondent is guilty of a course of conduct constituting fraud, misrepresentation, concealment, false promises, etc., in violation of Subsection 475.25(1)(b), Florida Statutes (1979); whether or not Respondent has obtained a real estate license by means of fraud, misrepresentations or concealment, in violation of Subsection 475.25 (1)(m), Florida Statutes (1979); whether or not Respondent has been guilty of fraud, misrepresentation, false promises and false pretenses, in violation of Subsection 475.25(1)(b), Florida Statutes (1979); and whether or not Respondent has been guilty of a crime against the laws of this state involving fraudulent or dishonest dealing, in violation of Subsection 475.25(1)(f), Florida Statutes (1979). 2/

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found.

   
   

2. Patricia C. Alters, Respondent herein, is a registered real estate salesperson and has been so registered since approximately February 18, 1980. Respondent has been issued License No. 0330568 by the Petitioner.

   
   

3. On November 10, 1979, Respondent made an application for registration as a real estate salesperson to the Florida Real Estate Commission. Question No. 6 of that application required that Respondent report if she had ever been arrested for or charged with the commission of any offense against the laws of any municipality, state or nation. Respondent filed a negative response to question No. 6. (Petitioners Exhibit No. 1.)

   
   

4. On June 18, 1979, an arrest warrant was issued in Duval County, Florida, charging Respondent with issuing worthless checks and drafts, in violation of Chapter 832, Florida Statutes (1979). Pursuant to that warrant, Respondent was arrested on June 20, 1979, by the Clay County Sheriff's Department. Respondent was booked and released on her own recognizance. (Petitioner's Exhibit No. 10 and Respondent's Exhibit No. 1.)

   
   

5. On May 19, 1980, Respondent was charged with the issuance of a worthless check drawn on or about December 19, 1979, in the amount of $12.71. The check was issued to the J. C. Penney Company, Inc. (Petitioner's Exhibit 4.)

   
   

6. Respondent pled guilty to said charge and was adjudged guilty by the court on May 19, 1980, in criminal proceeding No. 80-9979MM in the County Court of Duval County, Florida. She was fined $50.00 plus court costs. (Petitioner's Exhibit No. 5.)

   
   

7. On or about October 7, 1978, Respondent leased a residence located in Clay County, Florida, from one Lon E. Brugh.

   
   

8. Respondent defaulted on said lease on several occasions failure to timely pay the rent and late charges, namely the rent for the months of June and July, 1979, and for late charges on the months of October, November and December, 1978, and January through July, 1979.

   
   

9. Lon E. Brugh filed a civil suit in the County Court in and for Clay County, Florida, and charged that the Respondent had defaulted on the terms of the lease. On November 30, 1979, Respondent was adjudged to be in default of said lease and ordered to pay to Lon E. Brugh the sum of $929.05 plus his (Brugh's) costs of $34.00.

   
   

10. Evidence reveals that Respondent issued three (3) checks to Lon E. Brugh during late April and early May of 1979, for payment of rent and late charges for the residence which she leased from Brugh. Evidence also revealed that Respondent immediately instructed her bank to place stop payments on the checks which she had issued to Brugh for rent payments. Respondent contends that she placed stop payments on these checks due to a dispute that she had with Brugh concerning her responsibilities under the lease. Evidence reveals that the checks here involved were either for past due rents or for late charges. (Tr. pp. 62-66.)

    RESPONDENT'S POSITION AND DEFENSE

    
    

11. Initially, Respondent's position is that she was not licensed when the civil suit was filed by Lon E. Brugh or when she entered the lease agreement and therefore the facts surrounding the civil suit and related matters which occurred prior to her licensure should not be considered as a basis for Petitioner to take disciplinary action.

    
    

12. Secondly, Respondent countered that she issued all checks, which were the basis for the civil action filed by Brugh while she was hospitalized during April and May of 1979. Respondent contends that Mr. Brugh deposited the three

    (3) checks before she could make a deposit in her bank to cover the checks inasmuch as she was in the hospital.

    
    

13. Respecting the events surrounding Petitioner's allegation that Respondent was arrested, Respondent counters that she thought that she had never been arrested, inasmuch as she was driven to the sheriff's office in Clay County during the early morning hours on June 20, 1979, pursuant to a warrant issued by the Duval County Sheriff's Department. That arrest centered around a worthless check which Respondent issued to Sears. Respondent does not deny that the check was worthless when issued; however, she points out that restitution has been made to Sears. In support of her belief that she had not been arrested, Respondent points to the facts that she did not post bond; was not placed behind bars and was allowed to leave under her own recognizance. In response to that charge, Respondent entered a written plea of not guilty. She therefore considered that she was not arrested. (Petitioner's Exhibit No. 3.)

    
    

14. As to the circumstances surrounding the worthless check which Respondent issued to Penney's during December of 1979, Respondent noted that she made restitution for said check; that Penney's returned the monies which she paid them, inasmuch as she did not obtain the merchandise which was in the form of a lay-a-way purchase. Respondent admits to her plea of guilty; however, she testified that she had been issued a $3,500.00 check which was deposited into her account and was returned for non-sufficient funds, which, in turn, caused several of her checks to be returned.

    
    

15. Finally, Respondent generally denied all of the allegations involved herein and affirmatively stated that she made restitution for all of the checks which had been returned returned for non-sufficient funds; that she has established a good record of honesty and trustworthiness in the community and is well respected by realtors and other officials involved in the real estate business in the area. (Testimony of Respondent, Ken O'Leary, Sheldon Wardwell, John Drago and Peter Dalton.)

    
    

    CONCLUSIONS OF LAW

    
    

16. Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

1. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

2. The authority of the Petitioner is derived from Chapter 475, Florida Statutes.

3. Evidence reveals and the parties stipulated that since February 18, 1980, Respondent was a registered real estate salesperson. Respondent is the holder of License No. 0330568, which was issued by the Petitioner, Florida Real Estate Commission. As a licensed real estate salesperson, Respondent is subject to the regulatory provisions set forth in Chapter 475.25, Florida Statutes (1979).

   
   

4. Respondent, by tendering to Lon E. Brugh personal checks for payment of rents due Brugh stemming from her lease arrangement and instructing her bank to place stop payments on such checks in the circumstances herein evidences an intent to defraud and amounts to a course of conduct (by Respondent) violative of the proscribed acts set forth in Chapter 475.25(1)(b), Florida Statutes (1979).

   
   

5. In this regard, Respondent's attack on the Petitioner's jurisdiction related to Petitioner's authority to entertain the allegations contained in Count I of the Amended Administrative Complaint filed herein based on the contention that some of the acts therein complained of preceded the Respondent's status as either an applicant or licensee was considered. However, that defense is specifically rejected inasmuch as the statute relied upon for jurisdiction by Petitioner provides in pertinent part that "the board may deny an application for license . . . suspend a licensee revoke a licensee . . . impose an administrative fine or may issue a reprimand if it finds that the licensee or applicant has: . . . (b) been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by a trick, scheme or device

   . . ." Chapter 475.25(1)(b), Florida Statutes (1979). It is thus concluded that acts by an applicant, both during and prior to submission of an application to the Florida Real Estate Commission, are subject to regulation by the Commission, since it appears that the above-referred statutory provision holds licensees and applicants responsible for acts violative of Chapter 475, Florida Statutes (1979), which occur both prior and subsequent to the filing of their application. This is so based on an applicant's duty (obligation) to disclose arrests, etc., in response to Question 6 of the licensure application. Further, an applicant must be, inter alia, of good character and have a good reputation for fair dealing. Chapter 475.17, Florida Statutes. Nor can Respondent's claim that the Petitioner lacks jurisdiction based on the fact that the acts here complained of did not arise in the context of Respondent's acts as a realtor or real estate salesperson be sustained inasmuch as the regulatory provisions proscribe and hold accountable applicants or licensees for any dishonest conduct, be it either conduct in relation to an applicant's or licensee's own (personal) affairs or in the course and conduct of real estate transactions.

   Sellars v. Florida Real Estate Commission, 380 So.2d 1052 (Fla. 1st DCA 1979); and Lawrence S. Roberts and Larry Roberts, Inc. v. Kenneth N. Ayers, 380 So.2d 1057 (Fla. 1st DCA 1979). Also see McKnight v. Florida Real Estate Commission, 202 So.2d 199 (Fla. 2d DCA 1967).

   
   

6. Respondent, by failing to truthfully answer Question 6 on her application for registration as a real estate salesperson, which was filed with the Petitioner on or about November 10, 1979, and her failure to disclose that she had been arrested for or charged with the commission of any offense against the laws of any municipality, state or nation, amounts to a basis for concluding, and it is concluded, that Respondent obtained a license by means of fraud, misrepresentation, or concealment, within the meaning of Subsection 475.25(1)(m), Florida Statutes (1979).

7. Respondent, by entering a guilty plea to a charge of issuing a worthless check on or about December 19, 1979, in the approximate amount of

   $12.71, amounts to conduct violative of Chapter 475.25(1)(b), Florida Statutes (1979) .

   
   

8. Based thereon, Respondent is thereby guilty of having committed a crime against the laws of this state (Chapter 832.05, Florida Statutes), involving fraudulent or dishonest dealing within the meaning of Chapter 475.25(1)(f), Florida Statutes (1979).

RECOMMENDATION

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

RECOMMENDED:

That Respondent's license as a real estate salesperson be revoked and that the revocation be suspended for a period of forty-five (45) days during which time Respondent shall be afforded an opportunity to re-submit her application to be licensed as a real estate salesperson. It is further

RECOMMENDED:

That, in the event Respondent re-submits a, new application to be licensed as a real estate salesperson, which truthfully and completely responds to Question 6 of that application, Petitioner consider the character and mitigating evidence offered by Respondent herein. In such case, if Respondent re-submits her application for licensure within the above-referred forty-five (45) day period, it is further

RECOMMENDED:

That Respondent, after completing the filing of a new application as set forth herein, which otherwise fully satisfies and comports with Petitioner's procedures, be issued a new license, which license shall be placed on a probated status for a term of two (2) years.

DONE and RECOMMENDED this 22nd day of June, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 22 day of June, 1982.

ENDNOTES

1/ The parties waived the requirement that the undersigned issue a Recommended Order herein within 30 days following the close of the hearing. Additionally, the parties were afforded leave to submit post-hearing memoranda which have been received and considered by me in preparation of this Recommended Order. To the extent that the proposed findings and conclusions of said memoranda are not incorporated in this Recommended Order, said proposed findings and conclusions were deemed either irrelevant, immaterial or not otherwise supported by the evidence of record.

2/ Petitioner, through its counsel, withdrew, at the hearing, Count II of the Amended Administrative Complaint filed herein on January 25, 1982.

3/ In making this recommendation, the undersigned noted and considered the mitigating evidence offered by or on behalf of Respondent to the effect that Respondent has, since being licensed as a real estate salesperson, conducted her affairs in a respectable manner and is presently enjoying a fine reputation as a realtor in her local community.

COPIES FURNISHED:

John G. DeLancett, Esquire James R. Mitchell, Esquire Post Office Box 6171C Orlando, Florida 32803

Harry Shorstein, Esquire

Suite 605, Blackstone Building Jacksonville, Florida 32202

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Fred Wilsen, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 81-002533

Orders for Case No: 81-002533