) Case No. 98-0811
vs. )
Respondent. )
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
June 22, 1998, by video teleconference.
For Petitioner: Ghunise L. Coaxum, Esquire
For Respondent: William J. Barbour, pro se
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.
On November 20, 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 his real estate salesperson license "by means of fraud, misrepresentation, or concealment."
Respondent filed an election of rights which disputed the factual allegations contained in the Administrative Complaint, and Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.
At hearing, Petitioner called no witnesses; however, Petitioner's Exhibits 1 through 4 were received into evidence. Respondent testified on his own behalf, but offered no additional proof.
The transcript of hearing was filed September 1, 1998, and the parties were accorded leave until September 11, 1998, to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly considered.
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.
Respondent, William James Barbour, is a licensed real estate salesperson in the State of Florida, having been issued license number 0631568.
On September 28, 1995, Respondent filed an application (dated September 22, 1995) with the Department for licensure as a real estate salesperson. 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. 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, or applicable law of another state, you are responsible for verifying the expungement 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.
Respondent responded to the question by checking the box marked "Yes," and attached documents relating to his arrest on June 17, 1992, and conviction on March 1, 1993, for the offense of driving under the influence. The documents further revealed that Respondent's driving privilege was revoked by the court for a
six-month period (nunc pro tunc to June 17, 1992), and that by August 9, 1992, he had successfully completed the Broward County Court Alcohol and Substance Abuse Program. Respondent's driving privileges were restored February 25, 1993. No other offenses were disclosed on the application.
The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows:
The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.)
Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department discovered
that on March 4, 1993, in the County Court, Dade County, Florida, Respondent was arraigned on a charge of simple battery (date of occurrence January 9, 1993), a first degree misdemeanor, proscribed by Section 784.03, Florida Statutes. Respondent entered a plea of not guilty; however, on March 30, 1993, the court, following hearing, found Respondent guilty of the charge, but withheld adjudication. Respondent was subsequently ordered
to pay $2,536 in restitution, $105.00 in court costs, and participate in a pre-trial diversion anger control class.
After receipt of the foregoing information, the Department apprised Respondent of its discovery. Respondent addressed the Department's concerns by letter of September 5, 1997, as follows:
After our conversation on this morning of 9-5-97 I am aware that I filled out the application for Real Estate incorrectly.
At the time, my understanding to the question about an arrest or convictions on the application, was for a felony. I have had arrest but all of the 3 I've had were misdemeanors. One was for a DUI. In June of 1992 where I was found guilty and lost my Drivers License for 6 months & had to attend a counter measures class. I completed all required classes and now hold a safe Driver's Lic.
I had two other arrest[s]. Both were for battery. I had to attend an advocate program for violence. I completed all classes. I believe that ajudication [sic] was witheld [sic] for both charges. I am sorry for any inconvenience that I have caused over this matter, and hope that I can continue to keep my Real Estate License.
Thereafter, on November 20, 1997, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid finding of guilty to the crime of battery, 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 his license. According to the complaint, the disciplinary action sought
. . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. 1
At hearing, Respondent offered the following explanation for his response to item 9 of the application or, stated differently, for his failure to disclose the charge of battery for which he had been found guilty (albeit adjudication being withheld):
. . . Your Honor, at the time that I had filled out the application -- okay, right before that I had been arrested for a DUI. That's one thing that I did list in the application.
But at the time of the application, you know, the question had stated: If you had ever been arrested -- anyhow I answered yes to the question.
But when it said to list the details, my first understanding of the question was that it was for felonies only, but the charges that I had -- I had a charge for a fight, actually two times I was arrested for fighting.
And I didn't know what the outcome of the charge was to be able to list it, you know, in detail.
So when I answered the question I answered yes, you know, believing that the Real Estate Commission would, you know, because it said at the end of the question your answer would be checked with state, local, and federal officials, and I didn't know the detailed charges that I was -- that were placed upon me.
So I just answered the question yes figuring that they would find what the charges were. I was not trying to hide anything from the Real Estate Commission. I had great feeling that they were going to find out everything that I had been arrested
for. (Transcript, at pages 4 and 5.)
And, on cross-examination, Respondent responded regarding his response to the application question, as follows:
Q. And in attaching materials you listed a conviction for driving under the influence charge?
A. Right. Because at the time I had understood that the question was for a felony, but even still I answered it yes, because, you know, I knew the other ones were like misdemeanors or something, but I didn't know what degree or any of that, you know, so I answered yes. And the only thing I had attached was the DUI because that's the only thing that I even had paperwork on. (Transcript, at pages 7 and 8.)
Apart from the foregoing incidents, Respondent has had no other involvement with the criminal justice system.
Here, Respondent's explanation for his failure to disclose the battery charge on his application is wanting in substance, and does not detract from the conclusion that the application he submitted was false. In so concluding, it is observed that Respondent's answer to the question posed by the application (given the information requested and his attestation) purported to divulge every offense for which he had "been convicted . . . , found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Under such circumstances, it cannot be subject to serious debate that, when the application was submitted, Respondent knew he provided false or misleading information regarding his criminal record.
In concluding that Respondent knowingly and intentionally provided false or misleading information on his application, his explanation that he lacked paper work on the
battery arrest and assumed the Department would uncover the charge upon a background check, has not been overlooked; however, such explanation does not detract from the conclusion reached.
Indeed, it is inherently improbable, given the proximity in time of the offenses (Respondent was convicted of DUI on March 1, 1993, and arraigned on the battery charge on March 4, 1993), that Respondent would be able to relate the particulars of the DUI conviction on his application, but not one iota of information regarding the battery charge. Rather, Respondent's failure to even mention the battery charge on his application renders his claim of reliance on the Department's investigation to uncover it ring hollow.
CONCLUSIONS OF LAW
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).
Where, as here, the Department proposes the 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).
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.
To establish that a licensee committed a violation of Subsection 475.25(1)(m), the Department must show not only that the licensee provided false or misleading information on his application, but that he did so knowingly and intentionally. Munch v. Department of Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992), ("[A]pplying to the words used [in Section 475.25(1)(m)] their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found."). Accord, Walker v. Department of Business and Professional Regulation, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998), and Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95,
(Fla. 1st DCA 1974).
Here, as observed in the Findings of Fact, the Department has demonstrated that the misleading, deceptive and untrue representations contained in Respondent's application were made willfully (intentionally). See Ellis v. State, 425 So. 2d 201 (Fla. 5th DCA 1983), approved, 442 So. 2d 213 (Fla. 1983) (circumstantial evidence is sufficient to prove intent). Consequently, it has been shown, as alleged in the Administrative Complaint, that Respondent violated the provisions of Section 475.25(1)(m), Florida Statutes.
Having reached the foregoing conclusion, it remains to
resolve the appropriate penalty for Respondent's offense. Here, the Department suggests, as a penalty for the violation found, that Respondent's license be revoked. That proposal is consistent with Section 475.25(1), Florida Statutes, and the Department's penalty guidelines (Rule 61J2-24.001(3)(n), Florida Administrative Code). C.f. Williams v. Department of Transportation, 531 So. 2d 994 (Fla. 1st DCA 1988), (Agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees.) Consequently, there being no apparent reason to deviate from the Department's recommendation, its proposed penalty is accepted as appropriate. Walker v. Department of Business and Professional Regulation, supra, (Penalty imposed was within Florida Real Estate Commission's statutory authority and would not be disturbed.)
RECOMMENDED that a Final Order be entered which finds Respondent guilty of violating Section 475.25(1)(m), Florida Statutes, as alleged in the Administrative Complaint.
It is further RECOMMENDED that for such violation, the Final Order revoke Respondent's license.
DONE AND ENTERED this 15th day of September, 1998, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1998.
1/ The Department also sought an award of costs as provided for by Section 455.227(3), Florida Statutes; however, it offered no proof, at hearing, regarding what costs, if any, it incurred.
Consequently, there is no record basis on which to make a recommendation concerning any cost award.
Ghunise L. Coaxum, Esquire Department of Business and
William J. Barbour, pro se 5713 Southwest 142 Avenue
Henry M. Solares, Director Division of Real Estate Department of Business and
Lynda L. Goodgame, General Counsel Department of Business and
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.
