STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) CASE NO. 82-1691

) FREC NO. 0020605

KENNETH WADE WILLINGHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted pursuant to Subsection 120.57(1), Florida Statutes. The hearing began at 2:00 P.M., October 6, 1982, in Room 230, St. Johns County Courthouse, St.

Augustine, Florida.

APPEARANCES

For Petitioner: John Huskins, Esquire

Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32802

For Respondent: Kenneth Wade Willingham, pro se

c/o William H. Kenyon t/a Ace Real Estate 951 A1A South

St. Augustine Beach, Florida 32084 ISSUE

The issues to be considered herein concern the Administrative Complaint brought by Petitioner against Respondent accusing him of obtaining his real estate sales license by means of fraud, misrepresentation or concealment, within the meaning of Subsection 475.25(1)(m), Florida Statutes, and requesting that revocation or other disciplinary action be taken against Respondent.

FINDINGS OF FACT

1. Respondent, Kenneth Wade Willingham, made application to the State of Florida, Department of Professional Regulation, then Board of Real Estate, for licensure as a real estate salesman. (The Board of Real Estate has become the Florida Real Estate Commission.) A copy of the application may be found as Petitioners Exhibit No. 1, admitted into evidence.

2. In the course of the application, the Respondent is asked:

   
   

   Have you ever been arrested for, or charged with, the commission of an offense against the laws of any munici- pality, state or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details including the outcome in full:

   
   

   In response to that inquiry, Respondent indicated "DWI in March 1974."

   
   

3. Respondent executed the application form by placing his signature on the document to include notarization of his signature in which he stated that he had "carefully read the aforegoing application" and that the answers were true and correct."

   
   

4. In the course of the hearing, Respondent verified that he had read the application form to include question number six (6) and had filled in the information set forth in the application.

   
   

5. The offense of DWI which occurred in March, 1974, was one in which Respondent entered into a plea bargaining arrangement and was fined and placed upon probation, which probation was successfully completed. No jail sentence was served.

   
   

6. On May 24, 1982, the Administrative Complaint, which is the subject of this action, was filed against Respondent and through that complaint it was alleged that Respondent had failed to reveal:

   
   

   1. arrest on April 25, 1970 in St. Joseph, Missouri, for drunk and disorderly conduct and being found guilty thereof.

   2. arrest on April 15, 1972 in Oklahoma City, Oklahoma, for larceny of a motorcycle.

   3. arrest on September 28, 1980 in St. Augustine, Florida, for aggravated assault and driving while intoxicated.

      
      

7. Respondent requested a Subsection 120.57(1), Florida Statutes, hearing to dispute those allegations and that hearing was conducted on October 6, 1982.

   
   

8. On the subject of the alleged arrest of April 25, 1970, in St. Joseph, Missouri, for drunk and disorderly conduct and a finding of guilt for that offense, no proof was offered of an arrest for such an offense, independent of Respondent's testimony and he disclaims those allegations.

   
   

9. Petitioner does acknowledge having been arrested in 1972, in Oklahoma City, Oklahoma, involving an incident related to larceny of a motorcycle. He spent ten (10) days in jail for that matter, after having been fingerprinted. Respondent served one (1) or two (2) years of probation for the incident; however, he disavows responsibility for larceny of a motor vehicle. No other proof was presented.

10. As alleged, in 1980, in St. Augustine, Florida, Respondent was arrested for driving while intoxicated and for aggravated assault. In that matter, the Respondent was engaged in a fight and after the fight, drove away from the scene and was apprehended for driving while intoxicated. He was fined at least $1,500-$1,800 and lost his driver's license for one (1) year and spent one (1) night in jail. He is unaware of any probationary period associated with those events and no further evidence was presented by Petitioner on the subject of this arrest.

    
    

11. When questioned about his failure to include the Oklahoma City, Oklahoma, incident and that matter in St. Augustine, Florida, in the years 1972 and 1980, respectively, Respondent indicated that "apparently I did not understand the magnitude of the essence of this question no. 6 and the way it is worded."

    
    

12. At the time of the hearing, Respondent was a boiler- maker/welder and had a part-time job as a real estate salesman working for Bill Kenyon, Ace Real Estate in St. Augustine Beach, Florida.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action, Section 120.57, Florida Statutes.

    
    

14. Based upon a full consideration of the facts found herein, it is concluded as a matter of law that, by his failure to disclose the matters of his arrest in Oklahoma City, Oklahoma, in 1972, reference larceny of a motorcycle, and arrest in 1980, in St. Augustine, Florida, for aggravated assault and driving while intoxicated, Respondent obtained his license by means of fraud, misrepresentation and concealment within the meaning of Subsection 475.25(1)(m), Florida Statutes, and is subject to the penalties found in Subsection 475.25(1), Florida Statutes. These findings and conclusions are based upon competent and substantial evidence.

Upon a full consideration of the matters presented, it is RECOMMENDED:

That a final order be entered which finds that the Respondent has committed violations alleged and revokes Respondent's license to practice real estate.

DONE and ENTERED this 21st day of October, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS

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 21st day of October, 1982

COPIES FURNISHED:

John Huskins, Esquire Department of Professional

Regulation

400 West Robinson Street Tallahassee, Florida 32801

Kenneth Wade Willingham c/o William H. Kenyon t/a Ace Real Estate

951 A1A South

St. Augustine Beach, Florida 33084

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

William M. Furlow, Esquire Department of Professional

Regulation

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

Docket for Case No: 82-001691

Orders for Case No: 82-001691