STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-4578

)

JEFFREY H. STEWART, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

An administrative hearing was conducted in this proceeding on March 20, 1998, in Orlando, Florida, before Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The parties, witnesses, and court reporter attended the hearing in Orlando. The undersigned participated by video conference from Tallahassee, Florida.

APPEARANCES

For Petitioner: Geoffrey T. Kirk, Esquire

Division of Real Estate Department of Business and

Professional Regulation

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

For Respondent: No Appearance

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated Section 475.25(1)(m), Florida Statutes (1995) (hereinafter,

"Florida Statues"), by obtaining his real estate license by means of fraud, misrepresentation, or concealment.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on August 21, 1997. Respondent timely requested an administrative hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted four exhibits for admission in evidence. Respondent did not appear and did not submit any evidence.

The identity of the witness and exhibits, and the rulings regarding each, are set forth in the transcript filed on March 9, 1998. Petitioner timely filed its proposed recommended order ("PRO") on March 11, 1998. Respondent did not file a PRO.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for regulating the practice of real estate. Respondent is licensed as a real estate sales person pursuant to license number 0626375. Respondent was last licensed as a sales person with a non- licensed owner located at 1510 Noble Street, Longwood, Florida 32750.

2. Respondent submitted an application for license dated April 4, 1995. Question 9 on the application asked the applicant whether or not he or she has:

   . . . ever been convicted of a crime, found guilty, or entered a plea of nolo contendere

   . . ., even if adjudication was withheld.

   This question applies to any violation of the laws of any municipality, county, state, or nation. . . .

3. Respondent answered "yes" to question 9. Under the section of question 9 that requires an applicant who answers yes to explain the answer, Respondent disclosed that he had been arrested for driving under the influence and that the matter was pending. Respondent did not disclose that he had any other criminal history.

4. On August 20, 1987, Respondent pled nolo contendere to a charge of criminal mischief. He was placed on probation for one year.

5. On May 11, 1979, Respondent was adjudicated guilty of the charge of indecent exposure. He was sentenced to jail for

   15 days, ordered to attend counseling, and placed on probation.

6. Respondent attested to the veracity of his answers to the questions in the application, including his responses to question 9. His signature was properly notarized.

7. Respondent's failure to disclose his prior criminal history was a reckless or careless disregard of the truth of the matters asserted in Respondent's response to question 9. Respondent knew or should have known that his failure to disclose his prior criminal history was a material misstatement of fact. Petitioner relied on Respondent's sworn responses in his application when Petitioner issued a license to Respondent on June 16, 1995.

8. One of the purposes of question 9 is to assist

   Respondent in assessing an applicant's propensity for honesty, trustworthiness, and good moral character. In relevant part, Section 475.17(1)(a) requires a licensee such as Respondent to be honest, truthful, trustworthy, and of good moral character.

   CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. The parties were duly noticed for the administrative hearing.

10. Petitioner has the burden of proof in this proceeding. Petitioner must show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and the reasonableness of any penalty to be imposed. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

11. Petitioner satisfied its burden of proof. Petitioner showed that Respondent violated Section 475.25(1)(m) by obtaining his real estate license through fraud, misrepresentation, or concealment.

12. Respondent had actual or constructive knowledge that he made a material misstatement of fact on his license application when he failed to disclose his prior criminal history in his response to question 9. Respondent's failure to disclose his prior criminal history was a reckless or careless disregard for the truth. See Ocean Bank of Miami v. Inv-Uni Investment Corp.,

    599 So. 2d 694, 697 (Fla. 3d DCA 1992) (scienter or guilty knowledge may be established by showing that a person was reckless or careless as to the truth of the matter asserted).

13. There are no mitigating factors in this case. Respondent did not appear at the hearing to offer any evidence of mitigation, to explain his actions, or to show that the failure to disclose his prior criminal history was not a fraudulent, material misrepresentation.

14. Revocation of a license under Section 475.25 should be aimed at the dishonest or unscrupulous. Cf. Dreyer v. Florida Real Estate Commission, 370 So. 2d 95, 100 (Fla. 4th DCA 1979); Brod v. Jernigan, 188 So. 2d 575, 581 (Fla. 2d DCA 1966); Rivard v. McCoy, 212 So. 2d 672, 674-676 (Fla. 1st DCA 1968). Petitioner showed by clear and convincing evidence that Respondent was dishonest in his application for licensure.

15. Section 475.25(1) authorizes Respondent to revoke Respondent's license, suspend his license for not more than 10 years, impose a fine of not more than $1,000, issue a reprimand, or place Respondent on probation. Florida Administrative Code Rule 61J2-24.001(3)(n), in relevant part, recommends that Petitioner revoke Respondent's license and impose a fine of

$1,000.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Commission enter a Final Order finding Respondent guilty of violating Section 475.25(1)(m), revoking Respondent's license, and imposing an administrative fine in the amount of $1,000.

DONE AND ENTERED this 6th day of May, 1998, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1998.

COPIES FURNISHED:

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

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

Lynda Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Geoffrey T. Kirk, Esquire Division of Real Estate Department of Business and

Professional Regulation

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

Jeffrey H. Stewart, pro se 1510 Noble Street

Longwood, Florida 32750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-004578

Orders for Case No: 97-004578