STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 97-4979

)

PAMELA JAN POWERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on January 6, 1998, by video teleconference.

APPEARANCES

For Petitioner: Steven D. Fieldman, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Frederick H. Wilsen, Esquire

Gillis & Wilsen

1415 East Robinson Street, Suite B Orlando, Florida 32801

STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On July 18, 1997, Petitioner issued a one-count Administrative Complaint whereby it alleged that Respondent violated the provisions of Section 475.25(1)(m), Florida Statutes, by obtaining her real estate broker's license "by means of fraud, misrepresentation, or concealment."

Respondent disputed the facts alleged in the Administrative Complaint, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections

120.569 and 120.57(1), Florida Statutes.

At hearing, Petitioner called no witnesses; however, Petitioner's Exhibits 1, 2, and 3 were received into evidence.1 Respondent testified on her own behalf, and Respondent's Exhibits 1, 2, and 3 were received into evidence.

The transcript of hearing was filed February 17, 1998, and the parties were initially accorded ten days from that date to file proposed recommended orders; however, at their request, the deadline was subsequently extended to March 9, 1998. The parties elected to file such proposals, and they have been duly considered in the preparation of this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged, inter alia,

   with the responsibility and duty to prosecute administrative

   complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes.

2. Respondent, Pamela Jan Powers, is now and was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0508538.

3. On May 8, 1995, Respondent filed an application with the Department for licensure as a real estate broker. Pertinent to this case, item 9 on the application required that Respondent answer yes or no to the following question:

   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? This question applies to any violation 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 withheld, paroled, or pardoned. . . .

   Respondent responded to the question by checking the box marked "NO."

4. Following approval of Respondent's application, and her licensure as a real estate broker, the Department discovered a "Court Status" document (the "court document") for the Circuit/County Court, Broward County, Florida, which reflected that Respondent, then known as Pamela Jan Saitta, had been charged with five offenses, as follows:

   1. DISORDERLY CONDUCT

   2. POSSES/DISPLY SUSP/REVK/FRD DL

   3. LICENSE SUSP OR REVOKED2

   4. PERS/INJ/PROT/INS REQUIRE

   5. FAIL CHANGE ADDRESS/NAME

      (Petitioner's Exhibit 1.) The court document further reflected that on May 18, 1990, a plea of nolo contendere was entered to counts 1 and 3, adjudication was withheld, and Respondent was assessed costs of $105.00, but not fined. As for the remaining counts, count 2 was nolle prosequi and counts 4 and 5 were dismissed.

5. After receipt of the foregoing information, the Department undertook an investigation, which included an interview with the Respondent. At the time, Respondent told the investigator that she had no knowledge of the charges, as reflected on the court document.

6. Thereafter, on July 18, 1997, the Department filed the Administrative Complaint at issue in this proceeding, which, based on Respondent's negative response to item 9 on the application, charged that Respondent "has obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Fla. Stat." and sought to take disciplinary action against her license.

7. On September 17, 1997, Respondent appeared before the Florida Real Estate Commission in an apparent effort to resolve the complaint informally. At that time, Respondent told the commission, under oath, that she had no recollection of the charges or disposition, as reflected on the court document.3 She acknowledged, however, that the document referred to her, but could offer no explanation. During a recess, the commission's

   counsel spoke with Respondent, and suggested that she try and

   secure a copy of the police report, as well as other useful information. (Petitioner's Exhibit 3, page 10.)

8. Respondent, but not the Department, researched the records at the Broward County Police Department, and was able to locate a traffic accident report for February 21, 1990, that apparently related to the charges noted in the court document. (Respondent's Exhibit 1.) No police report was located.

9. The accident report reflects that on February 21, 1990, Respondent's vehicle was struck in the rear by another vehicle. The report reads, in part, as follows:

   Driver of veh 1 [Respondent] had a suspended D.L. and no proof of insurance. Driver of Veh 1 [Respondent] was subsequently arrested for the suspended D.L. ss 322.34(1) No proof of insurance ss316.646(1) Fail to change address within 10 days ss 322.19 and unlawful Use of License ss 322.32(1). The vehicles were both towed by Dalys towing.

   There is no mention in the accident report of any disorderly conduct by Respondent or any charge of disorderly conduct against Respondent. Moreover, there is no explanation of record for the disorderly conduct charge made against Respondent, as evidenced by the court document.

10. Regarding the events revealed by the accident report, Respondent acknowledges that these events are most likely the source of the charges that were reflected on the court document. She insists, however, that she has no recollection of receiving any citations at the time of the accident, and denies any knowledge of the court proceeding. In explanation, Respondent

    avers that, consequent to injuries received at the time, she has no recollection of events immediately following the accident.

    Regarding the court proceeding or its disposition, Respondent also avers she has no knowledge or recollection of that proceeding and did not appear in court on the charges. The only explanation she can offer for that proceeding or its disposition is that, most likely, her attorney resolved the matter, as he was resolving the civil suit that was brought against the other driver.

11. Given the circumstances of this case, Respondent's averment that she was unaware of the charges or the disposition disclosed on the court document when she submitted the application for a broker's license, and that she was only able to connect the court document to the traffic accident after she had retrieved a copy of the accident report, is credible. In so concluding, it is observed that her testimony was candid and consistent. Moreover, her explanation afforded rational explanation for what, otherwise, would have been an irrational act. In this regard, it is observed that the charges filed against Respondent, as well as their disposition, were not serious and did not reflect adversely on her qualification for licensure as a real estate broker. Consequently, were she aware of the events, there was no rational reason to conceal them from the Department.

    CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes (1997).

13. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "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). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation,

    458 So. 2d 844 (Fla. 2d DCA 1984). Finally, in determining whether Respondent violated the provisions of section 475.25(1), as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably

    proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

14. Pertinent to this case, Section 475.25(1) Florida Statutes, provides that the Florida Real Estate 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.

    
    

15. To establish that a licensee committed a violation of subsection 475.25(l)(m), the Department must show not only that the licensee provided false or misleading information on her application, but that she did so knowingly and intentionally. Gentry v. Department of Professional Occupational Regulation,

    293 So. 2d 95, 97 (Fla. 1st DCA 1974) (statutory provision prohibiting physician 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).") Accord, Munch v. Department of Professional Regulation,

    592 So. 2d 1136 (Fla. 1st DCA 1992) and Walker v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998).

16. Here, while the information provided in her application was false, the proof fails to support the conclusion that such nondisclosure was willful or intentional. Consequently, the Department has failed to establish a violation of subsection 475.25(1)(m).

RECOMMENDATION

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

RECOMMENDED that the Administrative Complaint be dismissed. DONE AND ENTERED this 13th day of March, 1998, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 13th day of March, 1998.

ENDNOTES

1/ By order of January 28, 1998, Petitioner was accorded ten days to file any final orders of the Florida Real Estate Commission which it contended were relevant to this proceeding, and Respondent was accorded five days from the date any such orders were filed to note any objection to their receipt into evidence.

Petitioner did not elect to file any final orders for consideration by the undersigned until March 10, 1998. On that date, Petitioner filed its proposed recommended order, which included five final orders of the Florida Real Estate Commission as an attachment. No explanation was made for Petitioner's delay

in filing the orders and no request was made for leave to late file the orders. Accordingly, the orders are stricken and accorded no consideration. Given the disposition of the case, however, prior orders of the Commission are irrelevant.

2/ Respondent's driver's license was suspended for failing to pay a speeding ticket. Respondent credibly testified that she received no notice of the suspension, and was unaware that her license had been suspended until she received notice of this administrative action. She attributes lack of notice to having left the marital home during the course of a bitter separation, and her husband denying her access to her papers, mail, and other personal items.

Given the circumstances of this case (Respondent's lack of knowledge regarding the charges or their disposition, discussed infra), Respondent may well have been unaware her license was suspended. Indeed, the basis for license suspension was, most likely, resolved (by payment of the speeding citation or otherwise) at the same time the nolo contendre plea was accepted to the suspended license charge. If that occurred, Respondent's license would have been administratively reinstated, and she would have had no inkling that her license was ever suspended until the Department brought the charges to her attention. See generally Chapter 322, Florida Statutes.

3/ At times, Respondent inartfully refers to the "Court Status" document as a police report during the Commission meeting.

Although an accident report was subsequently discovered, a police report has never been discovered.

COPIES FURNISHED:

Steven D. Fieldman, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Frederick H. Wilsen, Esquire Gillis & Wilsen

1415 East Robinson Street, Suite B Orlando, Florida 32801

Henry M. Solares, Director Department of Business and

Professional Regulation Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 97-004979

Orders for Case No: 97-004979