STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBERLY D. COYLE, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2152

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on August 31, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: H. Barry Ressler, Esquire

Suite 924, Biscayne Building

19 West Flagler Street Miami, Florida 33130

For Respondent: Ralph Armstead, Esquire

State Office Building, Suite 212

400 West Robinson Street Orlando, Florida 32801

BACKGROUND

Petitioner, Kimberly D. Coyle, filed an application for licensure as a real estate salesman on November 4, 1981, with Respondent, Department of Professional Regulation, Florida Real Estate Commission. On July 2, 1982, Respondent advised Petitioner that her application was denied on the ground she had failed to reveal a prior arrest on her application.

Thereafter, Respondent requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of her application. The matter was transmitted to the Division of Administrative Hearings on July 30, 1982, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Bearing dated August 17, 1982, the final hearing was scheduled on August 31, 1982, in Miami, Florida

At the final hearing, Petitioner testified on her own behalf, presented the testimony of her mother, Mary S. Davey, and offered Petitioner's Exhibits 1-3, each of which was received into evidence. Respondent offered Respondent's Exhibits 1-3; all were received into evidence.

The transcript of hearing was filed on September 7, 1982. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, none were filed.

The issue herein is whether Petitioner's application for licensure as a real estate salesman should be granted.

Based upon the entire record, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Kimberly D. Coyle, filed her first application for licensure as a real estate salesman in 1979 with Respondent, Department of professional Regulation, Florida Real Estate Commission. She did not pass the examination and resubmitted a second application in February, 1980. However, she did not take the examination at that time. By application dated November 2, 1981, she filed another application for licensure with Respondent. All responses on the application at that time were complete and correct.

   
   

2. The application was returned to Petitioner in January, 1982 with a request that she resubmit the same and enclose a passport photograph and a set of her fingerprints which had been previously omitted. Because Petitioner was in a hospital at that time, her mother returned the original application together with the requested fingerprints and photograph. These were received by the Commission on February 10, 1982. The November application was refiled a third time on March 4, 1982 because the required $25 application fee had not been included with the prior two submissions. Applicant was thereafter approved for licensure, and successfully passed the salesman examination.

   
   

3. On December 8, 1981, Petitioner was arrested in Dade County and charged with three counts of possessing a controlled substance. She was later placed in the South Miami Hospital Addiction Treatment Program on December 11, 1981 where she remained for six weeks. On March 1, 1982, Coyle was accepted as a participant in the State Attorney's Diversion Program and has been a successful participant since that time. As a result of her participation, adjudication on the charges has been withheld pending a successful completion of the conditions of her program.

   
   

4. On April 30, 1982, the Commission wrote Petitioner a letter in which it advised her that the December 8 arrest had come to its attention, and requested that she forward a "complete explanation of these charges along with an explanation of (her) partial answer to. . .question (six)." Question six requires that the applicant answer whether she had ever been arrested without regard to whether she was convicted, sentenced, pardoned or paroled.

   
   

5. Petitioner furnished a reply to the Commission's inquiry on June 8, 1982. She gave a full explanation of the charges and stated that a partial answer to question six was given on the March 4 submission because "as of March 4, 1982. . .(she) had not yet appeared in court."

   
   

6. On July 2, 1982, Respondent notified petitioner that her application was denied on the ground that her answer to question six on the application "failed to reveal the 1981 drug charge." The denial precipitated the instant case. 1/

7. Petitioner is twenty-one years old. She is currently employed as a waitress in Miami. If her application is approved, she intends to work for her mother's real estate firm in Marco Island, Florida.

   
   

8. Coyle stated that when her application was originally submitted in November, 1981, it was complete and accurate. The resubmissions in February and March, 1982 were made by her mother, and simply involved the refiling of the November application with the additional items (photograph, fingerprints and check) requested by the Commission. There was no intent on the part of Coyle to deceive the Commission, and when asked to clarify her response to question six, she did so in a full and truthful manner.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

10. Although a number of grounds for denying the application were cited by Respondent during the course of the hearing, 2/ the letter of denial dated July 2, 1982 contained only one, that being Petitioner's failure to correctly answer question six on the application. Specifically, the Commission held that because Coyle's "answer failed to reveal the 1981 drug charge", the application was being denied. Accordingly, the validity of Respondent's action must rest upon that specific ground. See, e.g., Roberts v. Florida Real Estate Commission, 365 So.2d 447 (Fla. 4th DCA 1978); Ursoleo v. Florida Real Estate Commission, 281 So.2d 532 (Fla. 2nd DCA 1973) cert. den. 287 So.2d 685 (Fla. 1974); Sandlin v. Florida Real Estate Commission, 187 So.2d 355 (Fla. 2nd DCA 1966). See also Subsection 120.60(6), Florida Statutes.

    
    

11. There is no statute or rule that specifically authorizes the Commission to deny an application for licensure if an incomplete or misleading answer is given by an applicant. 3/ However, Respondent relies upon Rule 21V- 2.27(2)(c), Florida Administrative Code, which provides as follows:

    
    

    (2) The applicant must make it possible to immediately begin the inquiry as to whether he is honest, truthful, trustworthy, of good character and bears good reputation for fair dealing, and will likely make transactions and conduct negotiations with safety to investors and to those with whom he may undertake a relation of trust and confidence.

    (c) he is required to disclose whether he has ever been arrested or convicted of a crime, or if any criminal or civil proceedings is

    pending against him, or if any judgment or decree has been rendered against him in a case wherein the pleadings charged him with fraudulent or dishonest dealings, or. . .

    
    

    The rationale for denying the license has not been articulated in the letter of denial or during the course of the hearing. However, Respondent apparently contends that by failing to comply with the above rule, applicant has violated Subsection 475.25(1)(e), Florida Statutes, which makes it unlawful to violate a Commission rule. Having violated a provision of Section 475.25, the Commission ". . .may then refuse to certify any applicant who is subject to discipline

    under s. 475.25." Subsection 475.181(2), Florida Statutes. But this argument must fail for two reasons. First, the letter of denial made no reference to the rule, and Petitioner was not advised that she had allegedly violated the rule until the final hearing. Second, the rule in question was not offered into evidence at the time of the hearing. The failure of Respondent to comply with these essential requirements constituted error. Poirier v. Department of Health and Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977). This being so, the application must be approved.

    
    

12. In order to avoid potential due process problems in future cases, it is suggested that letters of denial be more explicit, and set forth with specificity the grounds which underpin the denial, and the statute and rules which allegedly have been violated. This is essential since the failure to furnish a complete answer to question six is a common ground for denying applications, yet, unlike other regulatory statutes, the Commission statutes and rules do not specifically refer to this as a basis for denial. The boilerplate reference to various sections of Chapter 475 is not particularly helpful, for those sections contain numerous proscribed activities, and leaves an applicant (and Coyle) to speculate as to which, if any, of the subsections may have been violated.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Kimberly D. Coyle for licensure as a

real estate salesman be GRANTED.

DONE and ENTERED this 28th day of September, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 28th day of September, 1982.

ENDNOTES

1/ The full text of the pertinent portion of the letter of denial reads as follows: The power of the Commission to review and deny certifications is based upon Section 475.17, Section 475.181 and Section 475.25, Florida Statutes. The specific reason for the Commission's action is based on your answer to question Six of the licensing application and/or your criminal record according to the appropriate law enforcement agency. Your answer failed to reveal the 1981 drug charge.

2/ These included a failure to demonstrate that she was truthful, honest and trustworthy, that she had engaged in conduct that would be grounds for revoking or suspending a license, and that she had violated a Commission rule.

3/ This omission in Chapter 475 contrasts with provisions contained in Chapters

458 (medical doctors), 459 (osteopathic physicians), 460 (chiropractors), 461 (podiatrists), 463 (optometrists), 464 (nurses), 465 (pharmacists), 466 (dentists), 470 (funeral directors and embalmers), 471 (engineers), 472 (land surveyors), 473 (accountants), and 474 (veterinarians) which authorize the respective boards to deny licensure if a licensee attempts to procure the same by "false" or "fraudulent" misrepresentations on the application.

COPIES FURNISHED:

H. Barry Ressler, Esquire Suite 924, Biscayne Building

19 West Flagler Street Miami, Florida 33130

Ralph Armstead, Esquire

State Office Building - Suite 212

400 West Robinson Street Orlando, Florida 32801

Frederick H. Wilsen, Esquire Department of Professional

Regulation - Legal Services Post Office Box 1900

Orlando, Florida 32802

Carlos B. Stafford Executive Director

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ms. Kimberly D. Coyle

15816 South West 91st Court Miami, Florida

Docket for Case No: 82-002152

Orders for Case No: 82-002152