STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) CASE NO. 94-4165

)

BART CLAUDE GARDNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings, held a formal hearing in this matter on November 4, 1994, in Bradenton, Florida.

APPEARANCE

For Petitioner: Daniel Villazon, Esquire,

Department of Business and Professional Regulation

Division of Real Estate

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

For Respondent: Bart Claude Gardner, Pro se

820 Manatee Avenue

Ellenton, Florida 34222

STATEMENT OF THE ISSUE

Should the Respondent's license as a real estate salesperson in the State of Florida be revoked, suspended or otherwise disciplined?

PRELIMINARY STATEMENT

By an Administrative Complaint dated June 24, 1994, and filed with the Division of Administrative Hearings on July 25, 1994, the Department of Business and Professional Regulation, Division of Real Estate (Department) seeks to revoke, suspend or otherwise discipline Respondent Bart Claude Gardner's license as a real estate salesperson in the State of Florida. As grounds therefor, it is alleged that although the Respondent answered "yes" to question 9 on his application for licensure as a real estate salesperson and provided information on one arrest for reckless driving in September 1984, he failed to list a reckless driving conviction in June 1987, and a plea of nolo contendere in August 1991, to a charge of fraud for issuing a worthless check, notwithstanding

that adjudication was withheld. It is further alleged that such failure is a violation of Section 475.25(1)(m), Florida Statutes, in that Respondent obtained his license by means of fraud, misrepresentation, or concealment.

On July 19, 1994, the Respondent filed his Election Of Rights wherein he disputed the allegations and requested a formal under Section 120.57(1), Florida Statutes. By letter dated July 19, 1994, the Department referred this matter to the Division of Administrative Hearings (Division) for the assignment of a Hearing Officer and the conduct of a hearing.

In support of the charges, the Department presented the testimony of Jan "Jesse" James. Department's exhibits 1 through 5 were received as evidence. Respondent testified on his own behalf and presented the testimony of Bret Joseph Gardner and Claudia Gardner. The Respondent did not offer any documentary evidence.

There was no transcript of this proceeding filed with the Division. The Department timely filed its Proposed Recommended Order. The Respondent filed a one page document which included an argument, findings of fact and matters on mitigation of penalty. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Department is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 455 and 475, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. At all times material to this proceeding, the Respondent was licensed as a real estate salesperson in the State of Florida, having been issued license number 0605704. The last license was issued as a voluntary inactive salesperson with an address of 820 Manatee Avenue, Ellenton, Florida 34222.

   
   

3. By application dated September 3, 1993, and received by the Department on September 10, 1993, Respondent applied to become a real estate salesperson in the State of Florida.

   
   

4. Question 9 on the Application provides as follows:

   
   

   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? The question applies to any viola- tion of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic

   signal violations), without regard to whether you were placed on probation, had adjudication with- held, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order

   pursuant to Section 943.058, Florida Statutes, you are responsible for verifying the expungment or sealing prior to answering "NO".

   
   

   If you answered "YES", attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet

   of paper.

   
   

   Your answer to this question will be checked against local, state, and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate.

   
   

5. Respondent answered "YES" to question 9 and provided information about one arrest for reckless driving in September 1984.

   
   

6. A criminal background check performed as part of application process indicated that Respondent had also been convicted in June 1987 of reckless driving and had pled nolo contendere (no contest) to a felony charge of obtaining property by worthless check. Adjudication was withheld and Respondent received credit for time served.

   
   

7. The Respondent did not have a criminal background check performed. Therefore, he failed to report the reckless driving conviction in June 1987 because he had forgotten about the conviction. As to the worthless check charge, the Respondent did not consider it part of his record since the charge against him for issuing worthless check was a mistake, and reimbursement was made on the check. The mistake was that Respondent's brother, Bret Gardner had signed a check for Respondent to purchase materials. However, in the process of using the check to purchase the materials the Respondent identified himself with his driver's license and his driver's license's number was placed on the check.. Since their names are similar and they are close to the same age (difference of two years), the Respondent was charged with issuing the worthless check rather than Bret Gardner. There was one other occasion in the past where Respondent was mistaken for Bret Gardner in a court proceeding. Apparently, the no contest plea was the easiest way for the court to clear up the matter.

   
   

8. Respondent attended a real estate school operated by his mother, Claudia Gardner, and before filing his application the Respondent discussed Question 9 with his mother. Since the Respondent had been charged with other traffic violations (speeding tickets, etc.) it was his mother's opinion that by listing the one conviction - and if others should have been reported - then it would show that the Respondent was not attempting to conceal any convictions. Hindsight is 100 percent better than foresight. Respondent's mother's advice surely proves this out.

   
   

9. The failure to furnish all the information concerning his criminal record was not intentional on the part of the Respondent. However, this does not relieve him of the responsibility to have made an effort to check his record, particularly since he was advised of its importance by the last paragraph in question 9 which was emphasized by being in bold print.

   
   

10. Furthermore, having questioned his mother concerning the necessity to report his record - even assuming that time was of the essence in making his

    application - there was no reason why the Respondent could not have checked with the Division of Real Estate to determine if he should follow through on a check of his record so as to advise the Division of Real Estate of any changes to be made prior to the issuance of the license.

    
    

11. The Department presented no evidence that had the Florida Real Estate Commission (Commission) been presented Respondent's complete record it would have denied him licensure.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

13. Section 475.25(1), Florida Statutes, empowers the Commission to revoke, suspend or otherwise discipline the license of the Respondent, if the Board finds that the Respondent has committed any one of those acts enumerated in Section 475.25(1)(a) through (r), Florida Statutes.

    
    

14. The Administrative Complaint charges the Respondent with having violated Section 475.25(1)(m), Florida Statutes, which provides:

    
    

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

    
    

15. In a disciplinary proceeding, the burden is upon the regulatory agency to establish facts upon which its allegations of misconduct are based. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (2 DCA Fla. 1977). The Department must prove the material allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). While the Department has met its burden as to the Respondent's failure to disclose his entire criminal record, there are certainly mitigating circumstances that should be considered. However, the penalty should be such that it "brings home", so to speak, to the Respondent the importance of advising the Commission of all of his "past history", not just part of his criminal record. But in the instant case, the record is not so severe, and does not encompass any "really serious" past misconduct on the part of the Respondent, that would have an adverse effect on his performance as a real estate salesperson.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, and after having reviewed considered Rule 61J2-24.001, Florida Administrative Code, concerning disciplinary guidelines and the recommended range of penalties for a violation of Section 475.25(1), Florida Statutes, and considering mitigating circumstances as provided for in Rule 61J2-24.001(4), Florida Administrative Code, it is recommended that the Commission enter a final order finding Respondent guilty of having violated Section 475.25(1)(m), Florida Statutes. It is further recommended that the Respondent be assessed an administrative fine in the amount of $300.00, and his license be suspended for a period of six months, the suspension be stayed and the Respondent's license be placed on probation for a period of six months under terms and conditions deemed appropriate by the Commission. That upon the probation being successfully completed, the suspension of the Respondent's license would be lifted subject to any further terms and conditions the Commission may deem appropriate.

DONE AND ENTERED this 30th day of December, 1994, in Tallahassee, Florida.

WILLIAM R. CAVE

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 30th day of December, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4165

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner, Department's Proposed Findings of Fact:

1. Proposed findings of fact 1 through 8 are adopted in substance as modified in Findings of Fact 1 through 11 in the Recommended Order.

Respondent Gardner's Proposed Findings of Fact:

1. The Respondent's proposed findings of fact are intermingled with argument and other matters not considered findings of fact, and are not in numbered paragraphs nor do the lend themselves to numbering. However, I have responded to what I consider proposed findings of fact and have adopted them in substance as modified in Findings of Fact 1 through 11 in the Recommended Order.

COPIES FURNISHED:

Daniel Villazon, Esquire Department of Business and

Professional Regulation Division of Real Estate

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

Bart Claude Gardner 820 Manatee Avenue

Ellenton, Florida 34222

Jack McRay General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Darlene F. Keller Division Director Division of Real Estate

Department of Business and Professional Regulation

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

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 contact 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: 94-004165

Orders for Case No: 94-004165