STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

vs. ) CASE NO. 94-6150

)

TIMOTHY STEVE MCAFEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in this case by video teleconference on February 14, 1995, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Theodore R. Gay, Senior Attorney

Department of Business Professional Regulation

401 Northwest 2nd Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Harold M. Braxton, Esquire

Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815

STATEMENT OF THE ISSUE

The issue in this case is whether disciplinary action should be taken against Respondent's real estate salesperson license based upon the alleged violation of Section 475.25(1)(m), Florida Statutes, set forth in the Administrative Complaint filed by Petitioner.

PRELIMINARY STATEMENT

In a one count Administrative Complaint dated May 20, 1994, Petitioner charged Respondent with violating Section 475.25(1)(m), Florida Statutes.

Specifically, the Administrative Complaint alleged that Respondent was guilty of having obtained a license "by means of fraud, misrepresentation, or concealment." Respondent disputed the allegations contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted a hearing. The hearing was conducted by video-teleconference with the Hearing Officer in Tallahassee and the court reporter, attorneys, witnesses and Respondent in Miami.

Prior to the hearing, the parties filed a Joint Stipulation of Facts. At the commencement of the hearing, that Joint Stipulation of Facts was accepted into evidence as Petitioner's Exhibit 1. Petitioner did not present any other testimony or evidence.

Respondent testified on his own behalf and also presented the testimony of Sylvia Monroe. Respondent did not offer any exhibits into evidence.

A transcript of the proceedings has been filed. Both parties have timely submitted proposed recommended orders. A ruling of each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the Final Hearing and the entire record in this proceeding, the following findings of fact are made:

1. Respondent is a licensed real estate salesperson in the State of Florida having been issued license number 0606079 in accordance with Chapter 475, Florida Statutes. The last license issued to Respondent was as a salesperson, c/o Century 21 Action Realty, Inc., 8904 Taft Street, Hollywood, Florida 33024-4649.

   
   

2. Respondent obtained his Florida real estate license on or about December 11, 1993.

   
   

3. Respondent's application for licensure as a real estate salesperson (the "Application") was filed with Petitioner on or about October 14, 1993. Question 9 of the Application asked Respondent if he had ever been convicted of a crime, found guilty or entered a plea of guilty or nolo contendere even if adjudication was withheld. Respondent answered that question in the negative.

   
   

4. The evidence established that Respondent's answer to Question 9 on the Application was not accurate. On April 1, 1985, Respondent pled nolo contendere to a charge of possession of cocaine. Adjudication of guilt was withheld and Respondent was given a suspended sentence.

   
   

5. At the time of Respondent's plea agreement, he was 20 years old.

   
   

6. The circumstances surrounding his arrest, arraignment and plea indicate that Respondent did not fully understand the legal technicalities of what was taking place. Respondent entered the plea on the same day that he was arraigned and a public defender was appointed to represent him in connection with charges arising from an arrest that occurred on January 26, 1985.

   
   

7. Respondent's arrest on January 26, 1985 took place outside a bar in Fort Lauderdale. Respondent had gone to the bar to meet some friends.

   
   

8. While he was waiting for his friends, Respondent met an individual, S.T., with whom he was not previously acquainted. Respondent and S.T. began a conversation and talked about the possibility of going to another bar.

   
   

9. Respondent and S.T. went to the parking lot and were sitting in S.T.'s car discussing where to go next. A police officer approached the car and observed S.T. holding a small plastic straw.

10. According to the police report, when the police officer reached the car and asked for identification, S.T. handed the straw to Respondent and exited the car. The police officer then asked Respondent to exit the car. As Respondent was getting out of the car, the police officer saw Respondent drop the straw.

    
    

11. The police officer picked up the straw and noticed a white powdery substance which he thought to be cocaine. He arrested Respondent and S.T. and, upon, subsequent search of the car, found a small bag containing cocaine. The amount of cocaine found is not clear from the evidence presented in this case.

    
    

12. Because of his shock and surprise when he was arrested and the subsequent passage of time, Respondent does not remember all of the details surrounding his arrest. In particular, he does not remember S.T. handing him the straw and/or dropping it upon leaving the car.

    
    

13. Respondent claims that he did not know that there was cocaine in the car and there is no evidence directly tying him to the cocaine.

    
    

14. As indicated above, the case was resolved at Respondent's arraignment on April 1, 1985. Respondent does not recall all of the discussions that took place, but it was his understanding that he had not been convicted of a crime. Respondent did not understand the legal significance of the term "withheld adjudication". He was told that he was "free to go". No probation or further conditions were imposed upon him. Consequently, Respondent did not move to have the records of his criminal case sealed or expunged, even though he could have sought such an order from the court.

    
    

15. When he was filling out the Application, Respondent believed that since no penalties had been imposed and he had not been convicted of a crime he could truthfully answer no to Question 9 on the Application. While the evidence established that Respondent did not intentionally lie on the Application, it does not appear that he took any steps to verify the accuracy of his belief before submitting the Application.

    
    

16. Respondent first learned that there was some question regarding his criminal record when he was contacted by an investigator for Petitioner. Respondent immediately notified his supervisor at Century 21 Action Realty, where he was employed.

    
    

17. Respondent's supervisor testified at the hearing in support of Respondent and stated that she found him to be trustworthy, honest, loyal and dependable. She indicated that she would not hesitate to hire Respondent again even after learning of his brush with the criminal justice system.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Pursuant to Section 475.25(1), the Florida Real Estate Commission is empowered to take disciplinary action against a licensed real estate salesperson who is found guilty of any of the violations enumerated in the statute.

    
    

20. Petitioner has the burden of proving by clear and convincing evidence all of the essential allegations against Respondent. See Ferris v. Turlington,

    510 So.2d 292 (Fla. 1987); Robertson v. Department of Professional Regulation, Board of Medicine, 574 So.2d 153 (1st DCA 1990). The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983); Smith

    v. Department of H.R.S., 522 So.2d 956 (1st DCA 1988).

    
    

21. The Administrative Complaint in this case contains one count which charges Respondent with violating Section 475.25(l)(m), Florida Statutes. Section 475.25(1)(m), Florida Statutes, provides as follows:

    
    

    475.25 Discipline.--

    (1) The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, 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, registrant, permittee, or applicant:

    * * *

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

    
    

22. The clear and convincing evidence in this case established that Respondent's Application for a real estate salesperson license included erroneous information by stating that Respondent had never pleaded nolo contendere to a crime when in fact he had. Accordingly, resolution of their case depends on whether, given the circumstances, the submission of such erroneous information may fairly be characterized as "fraud, misrepresentation, or concealment." To establish that the applicant "[h]as obtained a license by means of fraud, misrepresentation, or concealment, as proscribed by Section 475.25(1)(m), Florida Statutes, the Petitioner must show not only that the applicant provided false or misleading information on the licensure application, but also that the applicant knowingly did so with the intent to deceive the Petitioner. Cf. Charter Air Center, Inc. v. Miller, 348 So.2d 614, 616 (Fla. 2d DCA 1977), cert. denied, 354 So.2d 983 (Fla. 1977) ("[t]he elements of fraudulent representation are: a false statement pertaining to a material fact, knowledge that it is false, intent to induce another to act on it, and injury by acting on the statement"); Gentry v. Department of Professional and Occupational Regulations, 293 So.2d 95, 97 (Fla. 1st DCA 1974)(statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue;" "[t]o constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally)"); Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986)("a charge of falsification of a government document [in this case, employment application] requires proof not only that an answer is wrong, but also that the wrong answer was given with intend to deceive or mislead the agency;...[a] system of real people, pragmatic in their expectations, would not easily

    tolerate a rule under which the slightest deviation from the truth [on an employment application] would sever one's tenuous link to employment").

    
    

23. While it has been clearly and convincingly demonstrated that Petitioner provided inaccurate information on his licensure application in response to the question of whether he had ever entered a plea of nolo contendere even if adjudication was withheld, the evidence adduced at hearing establishes that his inaccurate response was more likely the product of a misunderstanding than a conscious act to mislead the Petitioner. Accordingly, Petitioner has failed to sustain the charge that Respondent violated Section 475.25, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order

finding the Respondent not guilty of violating Section 475.25(1)(m), Florida Statutes, as alleged in the Administrative Complaint.

DONE AND RECOMMENDED this 12th day of July, 1995, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON 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 12th day of July, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6150

Rulings on the proposed findings of fact submitted by the Petitioner:

1. Adopted in pertinent part in findings of fact 1.

2. Adopted in substance in findings of fact 3.

3. Adopted in substance in findings of fact 2.

4. Adopted in substance in findings of fact 4.

5. Adopted in substance in findings of fact 15.

Rulings on the proposed findings of fact submitted by the Respondent:

1. Rejected as unnecessary.

2. Adopted in pertinent part in findings of fact 1.

3. Adopted in substance in findings of fact 1.

4. Adopted in substance in findings of fact 3.

5. Adopted in substance in findings of fact 3.

6. Adopted in substance in findings of fact 2.

7. Adopted in substance in findings of fact 4.

1. Subordinate to findings of fact 14.

2. Subordinate to findings of fact 15.

3. Subordinate to findings of fact 16.

4. Rejected as unnecessary.

5. Adopted in substance in findings of fact 16.

6. Adopted in substance in findings of fact 16.

7. Adopted in substance in findings of fact 17.

COPIES FURNISHED:

Darlene F. Keller Division Director Division of Real Estate Department of Business

and Professional Regulation Post Office Box 1900

Orlando, FL 32802-1900

Lynda L. Goodgame General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792

Theodore R. Gay Senior Attorney

Department of Business

and Professional Regulation

401 N.W. 2nd Avenue, Suite N-607 Miami, FL 33128

Harold M. Braxton, Esq. Suite 400, One Datran Center

9100 South Dadeland Boulevard Miami, FL 33156-7815

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: 94-006150

Orders for Case No: 94-006150