STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-0826

)

JACK WILSON JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Administrative Law Judge, Don W. Davis, on May 28, 1998, via video teleconferencing technology in Pensacola, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Laura McCarthy, Esquire

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32802

For Petitioner: Jack Wilson Johnson, pro se

c/o Jack Lu, Inc.

8445 Pensacola Boulevard

Pensacola, Florida 32505 STATEMENT OF THE ISSUE

Whether Respondent is guilty of the offenses set forth in the Administrative Complaint, and, if so, what penalties should be imposed.

PRELIMINARY STATEMENT

Respondent is a licensed real estate salesperson. By Administrative Complaint dated January 28, 1998, Petitioner noticed Respondent of an intention to take disciplinary action with regard to Respondent's license for alleged violations of Chapter 475, Florida Statutes.

Respondent requested formal administrative proceedings, and the matter was transferred to the Division of Administrative Hearings on February 17, 1998, for conduct of formal proceedings.

Final Hearing was scheduled to be held May 28, 1998, via teleconferencing technology with the parties appearing in Pensacola and the administrative law judge in Tallahassee, Florida.

At the final hearing, Respondent presented testimony of three witnesses, including himself. Petitioner presented no witnesses, but had five exhibits admitted into evidence.

A transcript of the final hearing was filed on June 9, 1998.

Proposed recommended orders submitted by the parties have been reviewed in the course of preparation of this Recommended Order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is the Division of Real Estate of the Department of Professional Regulation. As such, Petitioner acts

   as the licensing and regulatory agency for real estate salesperson licensees.

2. The Respondent is Jack Wilson Johnson, holder, at all times pertinent to these proceedings, of license number 0636049 issued by Petitioner. His license is currently inactive. His address is c/o Jack Lu, Inc., 8445 Pensacola Boulevard, Pensacola, Florida 32534.

3. On or about February 26, 1996, Respondent submitted an application to Petitioner for licensure as a real estate salesperson.

4. Question number 9 on the application read as follows:

   
   

   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 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 any other state, you are responsible for verifying the expungement or sealing prior to answering “NO.”

   If you answered “Yes,” attach details including dates and outcome, including 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 understand the question, consult with an attorney or the Division of Real Estate.

   
   

   Respondent marked the “NO” box beside this question.

   
   

5. Respondent then signed the “Affidavit of Applicant.” Above his signature was printed the following language.

   The above named, and undersigned, applicant for licensure as a real estate sales person under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) has carefully read the application, answers, and 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 recollection permit, without any evasions or mental reservations whatever; 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.

6. On or about July 6, 1989, Respondent pled nolo contendere to reckless driving in Santa Rosa County, Florida, and was adjudicated guilty with a sentence of 6 months probation.

7. Later, Respondent pled nolo contendere to a second charge of reckless driving on or about February 21, 1991. On or about January 19, 1994, Respondent pled guilty to violation of his probation on this charge.

8. On or about March 8, 1993, Respondent pled nolo contendere to Battery in Escambia County, Florida. Adjudication was withheld.

9. On or about May 1, 1974, Respondent pled nolo contendere to three counts of failure to register as a dealer or salesman, a felony, in Escambia County, Florida.

10. Respondent admitted at the final hearing that he was guilty of answering “NO” to question number 9 on the application that he made to Petitioner in this case, but that this action was merely a result of “poor judgment.”

11. Respondent offered mitigating testimony by two witnesses, establishing that he had handled real estate transactions for them to their satisfaction.

    CONCLUSIONS OF LAW

    
    

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

13. The evidence that Respondent committed the offense set forth in the administrative complaint is incontestably clear and convincing. Respondent has committed a violation of Section 475.25(1)(m), Florida Statutes, by obtaining his license through misrepresentation and concealment of the true status of his criminal history.

14. Pursuant to Section 475.25(1), Florida Statutes, the Florida Real Estate Commission is authorized to discipline Respondent’s license as a result of his violation through suspension of his license for a period not exceeding 10 years;

    revocation of his license; imposition of an administrative fine not to exceed $1,000 for each count of an administrative complaint; or, impose a reprimand.

15. As urged by Petitioner’s counsel and supported by penalty guidelines established in Rule 61J2-24, Florida Administrative Code, revocation of Respondent’s license is justified.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that a final order be entered finding Respondent guilty of the offenses charged in the administrative complaint and revoking his license.

DONE AND ENTERED this 14th day of July, 1998, in Tallahassee, Leon County, Florida.

DON W. DAVIS

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 14th day of July, 1998.

COPIES FURNISHED:

Laura McCarthy, Esquire Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

Jack Wilson Johnson c/o Jack Lu, Inc.

8445 Pensacola Boulevard

Pensacola, Florida 32534

Henry M. Solares, Division Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street 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: 98-000826

Orders for Case No: 98-000826