STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case No. 98-2676

)

DONALD J. BERRY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on August 13, 1998, by videoconference between Tallahassee, Florida, and Orlando, Florida.

APPEARANCES

For Petitioner: Ghunise Coaxum, Esquire

Department of Business and Professional Regulation

Division of Real Estate Suite N 308

Hurston Building, North Tower

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801-1772

For Respondent: Donald J. Berry pro se

2901 Dickens Circle

Kissimmee, Florida 34747 STATEMENT OF THE ISSUE

An Administrative Complaint dated January 22, 1998, alleges that Respondent violated Section 475.25(1)(m), Florida Statutes,

by failing to disclose on his licensure application that on August 9, 1993, he had pled nolo contendere to passing a worthless check. The issue for resolution is whether that violation occurred and, if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Respondent replied to the complaint with a letter explaining that he did not dispute the factual allegations but thought that he had complied with the application requirements at the time of its submittal and did not intend to conceal information or commit fraud.

Because the reply raised a disputed issue of material fact, the case was referred to the Division of Administrative Hearings for a formal evidentiary hearing.

At the hearing Petitioner's exhibits no. 1-3 were offered and received in evidence without objection. Petitioner presented no other evidence. Respondent testified in his own behalf.

The transcript was filed on September 18, 1998, and Petitioner's Proposed Recommended Order was filed on September 25, 1998.

FINDINGS OF FACT

1. Since approximately July 1, 1996, and at all times relevant, Respondent Donald J. Berry has been licensed as a real estate salesperson pursuant to Chapter 475, Florida Statute. He was born in England on April 4, 1966.

2. The application for licensure which Mr. Berry submitted to the Department of Business and Professional Regulation (DBPR), Division of Real Estate, and which he signed and acknowledged on April 18, 1996, includes these pertinent parts:

   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 a 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.

   
   

   . . .

   
   

   AFFIDAVIT OF 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 succeeding answers and statements are true and correct, and are as complete as his/her knowledge, information and record of 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. (Petitioner's Exhibit No. 1.)

3. Before he completed and signed the application, Mr. Berry called the Division of Real Estate and told them that the documentation he had was an arrest report. He understood from the staff-person's response that he could write information on the application and enclose what he had. He then checked "yes" in response to question no. 9, and wrote on the application form, "Driving with a suspended driving license." He also, so he thought, enclosed a copy of the arrest warrant from when he was stopped for traffic charges and was found to have an outstanding capias for "obtaining property for worthless check."

4. Sometime later after he submitted his application, someone from the Division of Real Estate called to tell him that he needed the disposition report on the charges. He contacted the clerk of court's office and a staff-person from there called the Division of Real Estate. The Division then obtained records

   from the Orange County Court that Mr. Berry had pled "no contest" to the worthless check charge and was fined $115, with adjudication withheld.

5. Later, Mr. Berry was told by an investigator from the Division of Real Estate that there was no record that an arrest report had been attached to his application.

6. The only testimony in this proceeding was from Mr. Berry. He explained that he had tried, in good faith, to respond accurately to question no. 9. He did not have any documentation on the arrest for driving with a suspended license and had only a copy of his arrest report for the 1993 worthless check charge.

   He thought he included the information being sought and was not trying to hide anything. As he explained, he knew the agency had his social security number and could check up on him. He did not write anything about the worthless check on his application form because he had the separate paper (the arrest report) describing that charge.

   CONCLUSIONS OF LAW

   
   

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

8. In license discipline cases such as this, the agency must prove the allegations of its complaint with evidence that is "clear and convincing." Department of Banking and Finance v. Osborne Stern and Company, 690 So. 2d 932 (Fla 1996).

9. The agency has alleged that Mr. Berry violated Section 475.25(1)(m), Florida Statutes, which provides that the Florida Real Estate Commission may discipline a licensee for obtaining a license "by means of fraud, misrepresentation, or concealment."

10. The violation at issue requires proof of an intentional act of fraud. Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 720 (Fla. 5th DCA 1998).

11. Unlike the licensee in Walker, supra, Mr. Berry was credible. He attempted to comply with the requirements of the application form and thought he had addressed both of the crimes he was required to disclose: one by writing on the application form; the other by attaching a copy of the arrest record.

12. There is no "clear and convincing" evidence that the arrest record was missing from Mr. Berry's application packet, much less any evidence that Mr. Berry intended to withhold that information. The agency presented no evidence other than the documents themselves: the certificate of licensure, the application form, records from the County Court of Orange County, and the arrest record. The agency has failed to meet its burden of proof.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED:

That the agency enter its final order dismissing the Administrative Complaint.

DONE AND ENTERED this 8th day of October, 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 8th day of October, 1998.

COPIES FURNISHED:

Ghunise Coaxum, Esquire Department of Business and

Professional Regulation Division of Real Estate Suite N 308

Hurston Building, North Tower

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801-1772

Donald J. Berry, pro se 2901 Dickens Circle

Kissimmee, Florida 34747

Lynda L. Goodgame, General counsel Office of the General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Henry M. Solares, 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: 98-002676

Orders for Case No: 98-002676