STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-1531

)

PAMELA WINN WELDON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 29, 1998, at Bradenton, Florida, before Richard A. Hixson, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Steven D. Fieldman, Chief Attorney

Department of Business

and Professional Regulation

400 West Robinson Street Suite N-308

Orlando, Florida 32801

For Respondent: Pamela Winn Weldon, pro se

Post Office Box 10667 Bradenton, Florida 34282

STATEMENT OF THE ISSUES

The issues for determination in this case are whether Respondent committed the acts alleged in the Administrative Complaint, and if so, whether Respondent's real estate salesperson license should be revoked or otherwise disciplined.

PRELIMINARY STATEMENT

On January 22, 1998, Petitioner, Florida Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint, alleging in one count that Respondent, Pamela Winn Weldon, obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Florida Statutes. On March 16, 1998, Respondent executed an election of rights form disputing the factual allegations of the Administrative Complaint and requesting a formal hearing. On March 30, 1998, the case was referred to the Division of Administrative Hearings to conduct the formal hearing which was thereafter scheduled for July 29, 1998.

At hearing Petitioner presented five exhibits which were received without objection. Petitioner requested the undersigned administrative law judge to take judicial notice of Chapter 475, Florida Statutes, and Rule 61J2, Florida Administrative Code, which request was granted without objection. Petitioner presented no witnesses. Respondent testified in her own behalf. Respondent presented no exhibits.

A transcript of the hearing was filed on August 5, 1998. On August 14, 1998, Respondent filed a handwritten statement indicating that she did not intentionally commit the acts alleged in the Administrative Complaint. On August 20, 1998, Petitioner filed a proposed recommended 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, in particular, Subsection 20.165, Florida Statutes; Chapters 120, 455, and 475, Florida Statutes; and the administrative rules promulgated pursuant thereto.

2. Respondent Pamela Winn Weldon is and was at all times material hereto a licensed Florida Real Estate salesperson, issued license number 0618890 in accordance with Chapter 475, Florida Statutes. From April 23, 1996, to the present, Respondent has been licensed as an inactive salesperson.

3. On September 24, 1994, Respondent executed an application for licensure as a real estate salesperson. Respondent completed and signed the application. By her signature she affirmed that the contents of the application were true and correct to the best of her knowledge.

4. On or about October 23, 1982, Respondent, while represented by counsel pled nolo contendere to a worthless check charge in the Criminal Division of Highlands County Court, Case No. CR82-185. Respondent's plea arose from an incident which occurred while she was having marital difficulties with her former husband. Respondent wrote a check for $250 to pay for repairs to her former husband's vehicle, with the understanding that her former husband would transfer the funds to Respondent's checking account to cover the amount of the check. Respondent's

   former husband failed to transfer the funds. Respondent was thereafter arrested at her place of employment, and charged with a worthless check violation. Respondent's counsel negotiated a plea agreement with the state attorney's office under the terms of which Respondent pled nolo contendere to the worthless check charge, was required to make restitution, and pay court costs.

   Respondent accepted the terms of the plea agreement and appeared in court, at which time the judge stated to Respondent that he did not want to see her in court again. Respondent satisfactorily completed her sentence by making restitution and paying court costs. Respondent was not placed on probation.

5. 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 contendre (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 believed those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, 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.

   
   

6. Respondent answered "no" to question number 9.

   
   

7. Respondent is a high school graduate and completed two years at Manatee Junior College.

8. Although question number 9 advised the applicant, in boldface type, to consult an attorney or contact the Division of Real Estate if the applicant did not understand it, Respondent, prior to answering "no" did not consult with an attorney or the Division of Real Estate.

9. At formal hearing, Respondent indicated that she understood the language contained in the application.

10. After learning of the charges brought by Petitioner against her, Respondent sent a letter to Petitioner's records section indicating that she did not understand question number 9 on the application.

11. At formal hearing, Respondent indicated that she did understand question number 9 but thought she was answering it correctly because she believed she had been found not guilty of the 1982 worthless charges.

12. Respondent was 24 years old at the time she pled nolo contendere to the worthless check charge in 1982. She was represented by counsel who advised her at the time that she entered her plea. Respondent accepted the terms of the plea

    agreement, appeared in court, entered her plea, and was specifically instructed by the judge regarding her future conduct. She made restitution and paid court costs. In light of these circumstances, neither Respondent's initial statement that at the time she filled out the application, she did not recall the incident, nor Respondent's subsequent statement that she believed she had been found not guilty are credible. Moreover, even if Respondent believed there existed some uncertainty as to the legal effect of her plea of nolo contendere in 1982, the real estate salesperson license application clearly, and in boldface type, informs the applicant that under such circumstances the applicant should contact an attorney or the Division of Real Estate, neither of which the Respondent did.

    CONCLUSIONS OF LAW

    
    

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

14. The Administrative Complaint charges Respondent with a violation of Section 475.25(1)(m), Florida Statutes which provides:

    1. The 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, 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. Petitioner has the burden of proving the allegations of the Administrative Complaint by clear and convincing evidence. Ferris vs. Turlington, 510 So. 2d 292 (Fla. 1987).

16. "Clear and convincing evidence" requires that the evidence must be found to be credible, that the facts to which witnesses testify must be distinctly remembered, that the testimony must be precise and explicit, and that the witnesses must be lacking in confusion as to facts in issue; 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 vs. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

17. Petitioner met its burden of proving the allegations of the Administrative Complaint by clear and convincing evidence.

18. Respondent was present with an attorney in Highlands County when she entered a plea of nolo contendere to the charge of worthless check on October 23, 1982. The attorney explained to Respondent the terms of the plea agreement which Respondent accepted. Respondent voluntarily pled nolo contendere. She understood the questions on the real estate salesperson application. She answered "no” to question number 9 although she had pled nolo contendere to a charge of worthless check in

    criminal court in 1982 which constitutes a violation of Section 475.25(1)(m), Florida Statutes.

19. Elements of fraud consist of (1) a false representation by a person of a past or existing fact . . .; (2) knowledge by that person of the falsity of the representation; (3) intent to defraud; (4) reliance on the misrepresentation by another

    party . . .; and (5) surrender . . . of the property to the person making the misrepresentation. United States Fidelity and Guaranty Co. vs. J. D. Johnson Co., Inc., 428 So. 2d 917 (Fla.

    1st DCA 1983). See also S. H. Inv. & Dev. Corp. vs. Kincaid, 495 So. 2d 768 (Fla. 5th DCA 1986). There exists clear and convincing evidence that Respondent obtained her license by fraud based on the following: (1) Respondent misrepresented on her application that she had never pled nolo contendere to a criminal charge; (2) Respondent knew that the representation was false;

    (3) Respondent intended to defraud the Division of Real Estate by misinforming as to her criminal history; (4) Petitioner relied on Respondent's misrepresentation and (5) provided Respondent with a salesperson's license.

20. Even if Respondent's actions did not rise to the level of fraud, there is clear and convincing evidence that she is guilty of misrepresentation. Misrepresentation may be spoken or written words, or "or any conduct which amounts to an assertion not in accordance with the truth." Nagashima vs. Busck, 541 So. 2d 783 (Fla. 4th DCA 1989). Citing Comment (b) to Subsection

    525, Restatement (Second) of Torts. Respondent indicated "no" to question number 9, although she remembered the circumstances of her court appearance in Highlands county. Accordingly her answer was not in keeping up with the truth.

21. Concealment is defined as "[a] withholding of something which one knows, and which one, in duty, is bound to reveal." Blacks Law Dictionary, Abridged 5th Edition, 1983. In light of the findings of fact above, Petitioner has proved by clear and convincing evidence that Respondent is guilty of concealment.

22. Florida Administrative Code Rule 61J2-24.001(3)(n) provides as a guideline penalty for a violation of Subsection 475.25(1)(m), Florida Statutes, involving the initial license application:

. . . the usual action of the commission shall be to impose a penalty of revocation and an administrative fine of $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order revoking Respondent's license as a real estate salesperson.

DONE AND ENTERED this 28th day of August, 1998, in Tallahassee, Leon County, Florida.

RICHARD A. HIXSON

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 28th day of August, 1998.

COPIES FURNISHED:

Steven D. Fieldman, Chief Attorney Department of Business

and Professional Regulation

400 West Robinson Street Suite N-308

Orlando, Florida 32801

Pamela Weldon

Post Office Box 10667 Bradenton, Florida 34282

Henry M. Solares, Division Director Department of Business

and Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900

Orlando, Floridaa 32802-1900

Lynda Goodgame, General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street Northwood Centre

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: 98-001531

Orders for Case No: 98-001531