STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 97-5596

)

JUDITH COLLEEN MILSAPS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Administrative Law Judge, Daniel M. Kilbride, in Melbourne, Florida, on February 19, 1998. The following appearances were entered:

APPEARANCES

For Petitioner: Steven D. Fieldman, Chief Attorney

Department of Business and Professional Regulation, Division of Real Estate

400 West Robinson Street, Suite N-308 Orlando, Florida 32801

For Respondent: Judith Milsaps, pro se

4408 Thistle Berry Drive Melbourne, Florida 32935

STATEMENT OF THE ISSUE

Whether Respondent obtained her real estate license by means of misrepresentation or concealment, by failing to disclose that she had pled guilty to a felony, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what discipline

should be imposed.

PRELIMINARY STATEMENT

On October 24, 1997, Petitioner filed a one-count administrative complaint against Respondent. Respondent disputed the charge and requested a formal hearing pursuant to

Section 120.57(1), Florida Statutes. This matter was referred to the Division of Administrative Hearings and set for hearing. On February 16, 1998, this case was transferred to the undersigned and the formal hearing was held on February 19, 1998.

At the hearing, Petitioner's Exhibits numbers one through four were admitted into evidence, without objection. No witnesses were called on behalf of Petitioner. Respondent's Exhibits numbers one and two were admitted into evidence.

Respondent testified in her own behalf.

The transcript of the proceedings was filed on March 11, 1998. Each side was given until March 23, 1998, to file proposed recommended orders. Petitioner filed its proposed recommended order on March 24, 1998. The Petitioner included five Final Orders of the Florida Real Estate Commission (involving violations of Section 475.25(1)(m), Florida Statutes) with Petitioner's proposed recommended order. Respondent has not filed proposals as of the date of this order.

FINDINGS OF FACT

1. Petitioner 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, particularly Chapters 455 and 475, Florida Statutes, and Chapter 61J2, Florida Administrative Code.

2. Respondent is and was a duly licensed real estate salesperson in the State of Florida at all times material to the Administrative Complaint in this action.

3. Respondent was arrested on September 12, 1980, on a felony charge. On August 24, 1981, Respondent pled guilty to "possession of quaaludes less than 200 grams," in Circuit Court of Orange County, Florida. Adjudication of guilt was withheld by the court and Respondent was placed on probation for a period of five years.

4. Respondent successfully completed probation, which was terminated after three years. Respondent has not been arrested or convicted on any other criminal charge since 1980.

5. By licensure application, signed by Respondent on January 13, 1996, Respondent applied to become licensed as a real estate salesperson in the State of Florida.

6. At the time Respondent made application for her real estate license, Respondent was asked to indicate whether or not she had "ever been convicted of a crime, found guilty, or entered a plea of 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 . . . without regard to whether you were placed on probation, had adjudication withheld, paroled or pardoned." In response to this question, Respondent checked the "No" box.

7. In the "Instructions" section of the Application, applicants are plainly advised to "Fill out carefully." Respondent swore that all answers and information contained in her application were true and correct and complete. Respondent's signature was duly notarized.

8. The Respondent's defense to the charge is that she thought the matter had been expunged. The Respondent stated that she personally took no action to expunge the matter. Instead, the Respondent's belief that the matter had been expunged is based upon events surrounding the Respondent's application for a liquor license in 1987. On the application, Respondent acknowledged her arrest in 1980. Upon investigation of Respondent's criminal record by the Division of Alcoholic Beverages and Tobacco, the investigator indicated that one charge was dismissed and adjudication of guilt was withheld on a September 12, 1980, arrest. Respondent's application for a liquor license was approved. Based on this belief, the Respondent believed that the matter had been expunged, sealed, or nolle prossed.

9. Although Respondent made a careless misrepresentation in her answer to Question 9, Respondent's explanation of the basis for her answer is credible.

   CONCLUSIONS OF LAW

   
   

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

    Chapter 60Q-2, Florida Administrative Code.

    
    

11. Petitioner has the burden of proof as to the allegations contained in the administrative complaint. Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In license disciplinary proceedings, the burden of proof is by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

12. A real estate licensee may be disciplined in Florida if the licensee has obtained a real estate license by "means

    of . . . misrepresentation or concealment." Section 475.25(1)(m), Florida Statutes.

13. Respondent knew or should have known that she was making a material misstatement of fact on her real estate application by answering Question 9 the way she did. See Ocean Bank of Miami v. Inv-Uni Investment Corp., 599 So. 2d 694, 697 (Fla. 3d DCA 1992) (Although scienter or guilty knowledge is an element of intentional misconduct, it may be established by showing that the accused was reckless or careless as to the truth of the matter asserted.) Accordingly, Respondent is guilty of making an intentional or reckless misrepresentation in order to obtain her real estate license.

14. It is evident from the Final Orders in related cases submitted by Petitioner that the Florida Real Estate Commission considers these cases to be quite serious.

15. The discipline which may be imposed against a real estate licensee may include revocation, suspension for a period not exceeding ten (10) years, imposition of an administrative fine not to exceed $1,000 for each count or separate offense, a reprimand, probation, and any or all of the foregoing.

    Section 475.25(1), Florida Statutes. Rule 61J2-24.001(3),

    
    

    Florida Administrative Code, sets forth a range of suggested penalties for violations of Chapter 475.

16. In view of the length of time that has passed since Respondent's arrest, and her explanation of the reason for her omission, Respondent has demonstrated mitigating circumstances in this matter.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that Respondent be found guilty of having violated Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint.

It is further

RECOMMENDED that Respondent's real estate license be suspended for one year and Respondent pay an administrative fine

of $500.00, plus the costs of prosecution of this matter.

DONE AND ENTERED this 6th day of April, 1998, at Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 April, 1998.

COPIES FURNISHED:

Steven D. Fieldman, Chief Attorney Department of Business and Professional

Regulation, Division of Real Estate

400 West Robinson Street, Suite N-308 Orlando, Florida 32801

Judith Milsaps, pro se 4408 Thistle Berry Drive Melbourne, Florida 32935

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

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: 97-005596

Orders for Case No: 97-005596