STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-2179

)

DANIEL P. SHANNON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Administrative Law Judge, Mary Clark, conducted a formal hearing in the above-styled case on

October 8, 1998, by videoconference. The parties, their witnesses and the court reporter participated in Orlando; the Administrative Law Judge presided from Tallahassee, Florida.

APPEARANCES

For Petitioner: Steven W. Johnson, Esquire

Florida Department of Business and Professional Regulation

Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

For Respondent: Frederick H. Wilsen, Esquire

1999 West Colonial Drive, Suite 211

Orlando, Florida 32804 STATEMENT OF THE ISSUES

An amended administrative complaint alleges that Respondent violated Section 475.25(1)(m), Florida Statutes, when he failed to reveal two pleas of nolo contendere on his application for licensure. The issues for disposition are whether that offense occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENTS

Respondent, through counsel, filed a notice that he contested the allegations of the administrative complaint and requested a formal hearing. The case was referred to the Division of Administrative Hearings and was set for hearing in August 1998, by videoconference.

When the video equipment malfunctioned, the case was continued and proceeded as described above.

At the hearing Petitioner presented the testimony of its investigator, Robert Baird, and offered Petitioner's Exhibit nos. 1-4, all received in evidence without objection.

Respondent testified in his own behalf.

No transcript was filed; the parties' Proposed Recommended Orders were filed on October 29 and 30, 1998.

FINDINGS OF FACT

1. Respondent, Daniel P. Shannon, signed by affidavit a real estate saleperson's licensure application on August 29, 1995, and after passing the examination, became licensed on or about October 20, 1995. He continues to be so licensed and his current license is active (license no. 0630417.)

2. The licensure application signed by Mr. Shannon includes this question no. 9:

   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.

   
   

   The application form also includes this affidavit statement of the applicant:

   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.

3. In response to question no. 9. Mr. Shannon disclosed two traffic offenses: a DUI in 1987, and a conviction of reckless driving in 1989.

4. After Mr. Shannon was licensed as a real estate salesperson, the Department of Business and Professional Regulation (DBPR) conducted a routine criminal history check in November 1995. This revealed two pleas by Mr. Shannon: a plea of guilty to trespassing in an unoccupied conveyance in June 1985, and a plea of nolo contendere to loitering or prowling in March 1987.

5. Robert Baird, an investigator with DBPR's Division of Real Estate, was assigned to investigate the discrepancy in August 1997. He reached Mr. Shannon by telephone on September 22, 1997, and explained the basis for the investigation. Mr. Shannon told Mr. Baird that he didn't remember the offenses when he filled out his application and the oversight was unintentional. He cooperated with the investigation.

6. Mr. Shannon lives in Kissimmee, Florida, with his wife and wife's children. He moved to Florida 18 years ago and has "tried to make a go of it" ever since. His real estate license is active but he doesn't make enough money so he works 6 days a week driving a cab, approximately 90 hours a week.

7. When he filled out his application for real estate licensure in 1995, Mr. Shannon reviewed and answered the questions carefully. He understood he was supposed to disclose criminal convictions. He was worried about the driving offenses and disclosed them. He committed those offenses and went to jail.

8. He simply forgot the other two offenses as they were really "stupid things." The trespass occurred when he had split-up with a girlfriend and moved down the street. He had taken most of his belongings, but still had her car key and was

   looking in the glove compartment. The girlfriend had him charged with burglary. He pled guilty to the lesser charge of trespass, paid a fine of $150, plus $7.50 costs, agreed to no further contact with the girlfriend, and received a suspended jail sentence of 30 days. He completed the terms of the sentence and did not spend time in jail.

9. The "loitering" offense occurred when he was looking for a place to live. There was a rental sign on an apartment complex being constructed and there were no doors on the units so he went inside to look around. The security guard called the deputies

   and they arrested him. His public defender advised him to plead nolo contendere and he did not have to go to court. Adjudication was withheld and he performed some community service.

10. At the time Mr. Shannon filled out his real estate license application he had no paperwork on the forgotten offenses and was reminded of the underlying circumstances only when he talked with the investigator and actually saw the court records that the agency had obtained.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 455.225(5), Florida Statutes.

12. In license discipline cases such as this the agency must prove the alleged violations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987), Department of Banking and Finance v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996).

13. Section 475.25(1)(m), Florida Statutes, provides that the Florida Real Estate Commission may discipline a licensee for obtaining a license "by means of fraud, misrepresentation, or concealment."

14. An intentional act must be proved before a violation of Section 475.25(1)(m), Florida Statutes, may be found. That requisite intent may be established by undisputed circumstantial evidence. Walker v. Florida Dept. of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998).

15. Mr. Shannon readily admitted that he did not include two pleas in his response to question no. 9 on the application form. In contrast to the licensee in Walker, however, the circumstantial evidence was disputed and Mr. Shannon's explanation was credible. He read and understood the plain language on the form and he disclosed the two more serious incidents that he recalled when completing the form. Having done

    that, there was no reasonable motive to intentionally withhold the two minor incidents that were not disclosed. His explanations to the agency investigator and at the formal hearing were entirely consistent with his excusable neglect rather than "fraud, misrepresentation, or concealment."

16. The agency has failed to prove clearly and convincingly that Mr. Shannon committed the alleged violation.

RECOMMENDATION

Based on the foregoing it is hereby

RECOMMENDED: That the Florida Real Estate Commission enter its final order dismissing the administrative complaint.

DONE AND ENTERED this 10th day of December, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

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 10th day of December, 1998.

COPIES FURNISHED:

Steven W. Johnson, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Frederick Wilsen, Jr., Esquire Gillis & Wilsen

1999 West Colonial Driver, Suite 211

Orlando, Florida 32804

James Kimbler, Acting Division Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

Docket for Case No: 98-002179

Orders for Case No: 98-002179