STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF )

REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2466

)

WILLIAM L. MANTZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on June 17, 1991 in DeLand, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

FOR PETITIONER: Steven W. Johnson

Senior Attorney Legal Section

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

FOR RESPONDENT: William L. Mantz, pro se

380 Mercers Fernery Road DeLand, Florida 32720

STATEMENT OF THE ISSUE

By Administrative Complaint dated February 20, 1991 and filed with the Division of Administrative Hearings on April 23, 1991, the Department of Professional Regulation, Division of Real Estate, alleged that Respondent had obtained a real estate license by means of fraud in that Respondent had a prior criminal charge and 1976 conviction in New Jersey and had not disclosed same in his July 30, 1990 application for licensure as a real estate salesman, contrary to and in violation of Subsection 475.25(1)(m) F.S.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Robert N. Miller, an agency investigator, and of Respondent. Petitioner's Exhibit A (Respondent's licensing history, certified) was admitted. Petitioner's Exhibit B (an uncertified report) was admitted subject to evidentiary arguments to be made within the

post-hearing proposals. No evidentiary argument to that effect was made (see infra) and Petitioner's Exhibit B is hereby deemed not to be in evidence.

Respondent testified on his own behalf and had one exhibit admitted in evidence.

Petitioner was also orally granted 10 days from date of formal hearing in which to file a certified copy of the alleged conviction. Instead, Petitioner has filed a proposed recommended order of dismissal admitting that the agency has no evidence of Respondent's alleged conviction.

Since Petitioner has failed to file the exhibit for which the record was left open, and since Petitioner itself has proposed dismissal, it is no longer necessary to provide additional time for Respondent to present any further defense, and the record is hereby closed.

FINDINGS OF FACT

1. Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints against real estate licensees pursuant to the laws of the state of Florida, in particular Section 20.30 F.S. and the rules promulgated pursuant thereto.

   
   

2. Respondent is now, and was at all times material hereto, a licensed real estate broker in the state of Florida, having been issued license number 0566757 in accordance with Chapter 475, F.S.

   
   

3. The last license issued was as a nonactive salesman, in care of 380 Mercers Fernery Road, DeLand, Florida 32720.

   
   

4. On his July 30, 1990 application, Respondent made a sworn application for licensure as a real estate salesman with the Petitioner.

   
   

5. Question No. 7 of the July 30 application read, in pertinent part, as follows:

   
   

   7. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?

   
   

6. Under oath, Respondent answered "no" to the foregoing Question No. 7.

   
   

7. Thereafter, Petitioner based this instant prosecution on a series of loose pages which purported to be a report from the U.S. Department of Justice, Federal Bureau of Investigation (Petitioner's Exhibit B). This item is not a business record of the Petitioner, and Petitioner has shown no reason this printed hearsay should be admitted and considered. Consequently, it has not been admitted or considered.

   
   

8. Respondent was interviewed by Petitioner's investigator. The investigator, Mr. Miller, testified concerning his interview of Respondent, but nothing in their conversation constituted an "admission of a party opponent." Nor was anything said in that conversation sufficient to supplement or explain any other testimony or exhibit. See, Section 120.58(1) F.S. Likewise, the conversation did not even support the allegations of the Administrative Complaint.

   
   

9. Respondent's testimony at formal hearing was disjointed and inconclusive but to the general effect that at some time he had been arrested in

   New Jersey in connection with a burglary of his dwelling and a subsequent police search thereof which produced a cache of marijuana. He denied telling a deliberate lie on his real estate application and stated he simply could not recall anything further about the New Jersey incident which he described.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.

    
    

11. Section 475.25(1)(m) F.S. provides as follows:

    
    

    1. Discipline.--

       1. The commission may deny an application for licensure, certification, registration,

    or permit, or renewal thereof; may place a licensee , certified appraiser, registrant, or permittee on probation; may suspend a license, certification, registration, or

    permit for a period of not exceeding 10 years; may revoke a license, certification, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, certified appraiser, registrant, permittee, or applicant:

    * * *

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

    
    

12. Petitioner has filed a proposed recommended order which recommends dismissal of the Administrative Complaint. This procedure has the effect of a confession of error. 1/

    
    

13. The burden of proof in a penal proceeding such as this one is upon the agency, and that burden must be met by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Since that burden has not been met here, the charges should be dismissed.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter a Final Order dismissing with prejudice the Administrative Complaint.

DONE and ENTERED this 27th day of June, 1990, at Tallahassee, Florida.

ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1990.

ENDNOTES

1/ Petitioner's attorney related in the cover letter for the agency's proposed order that through his efforts the agency now has hearsay information that". . . the marijuana conviction which forms the basis of the Administrative Complainant (sic) was finally reversed on appeal; hence the Respondent has no criminal convictions of which the Petitioner has evidence at this time. Accordingly, my accompanying Proposed Recommended Order recommends dismissal. Had the Respondent simply advised the Department of the appeal at any time during the investigation or prosecution of this case, the hearing would have been avoided." Although this letter is technically not part of the proposed findings of fact and conclusions of law, it has become part of the record in this cause, and contrary to the letter's final assertion, it is well-established in administrative jurisprudence that the Respondent does not bear the burden to prove his innocence. Rather, it is the duty and responsibility of the prosecuting agency to determine that it is correctly disciplining before it files the Administrative Complaint.

APPENDIX TO RECOMMENDED ORDER

The following constitute specific rulings pursuant to Section 120.59(2)

F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF:

Accepted: 1,2, 3, 4, 5, 6

Rejected: 7 Petitioner's B (the FBI report) was not admitted in evidence. Respondent's PFOF:

Respondent was not afforded time to file post-hearing proposals in light of Petitioner's confession of error.

COPIES FURNISHED:

William L. Mantz

380 Mercers Fernery Road DeLand, FL 32720

Steven W. Johnson Senior Attorney Legal Section

Division of Real Estate Post Office Box 1900 Orlando, FL 32802-1900

Darlene F. Keller, Director Division of Real Estate Post Office Box 1900 Orlando, FL 32802

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-002466

Orders for Case No: 91-002466