STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-2687

)

JAMES COLLINS, )

)

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

APPEARANCES

For Petitioner: Laura McCarthy, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Frederick H. Wilsen, Esquire

1999 West Colonial Drive, Suite 211

Orlando, Florida 32804 STATEMENT OF ISSUES

An Administrative Complaint dated May 20, 1998, alleges that Respondent James Collins, violated Section 475.25(1)(m), Florida

Statutes, when he falsely stated on an application for licensure that he had never pled guilty to, nor was convicted of a crime.

The issue for disposition is whether that violation (obtaining a license by means of fraud, misrepresentation, or concealment) occurred, and if so, what discipline is appropriate.

PRELIMINARY STATEMENT

Mr. Collins, through counsel, disputed the factual allegations in the complaint and requested a formal evidentiary hearing. Upon referral to the Division of Administrative Hearings the case was assigned and was set for hearing as described above.

At the hearing, Petitioner presented 4 exhibits, all received in evidence without objection. Those exhibits included a certification of licensure, Mr. Collins' licensure application, certified copies of court records, and a December 16, 1997, letter from Mr. Collins. Petitioner presented no witnesses.

Mr. Collins testified in his own behalf and submitted

7 exhibits, received in evidence without objection. These included a letter from his attorney, a letter of commendation from his parish priest, various certificates of appreciation for community service, and a copy of his plea of guilty.

The transcript was filed on October 13, 1998, and the parties filed their Proposed Recommended Orders on November 2, 1998.

FINDINGS OF FACT

1. James Collins has been an active real estate salesperson in Florida since July 28, 1994, having been issued license No. 0614229.

   
   

2. On his application for licensure dated January 22, 1994, Mr. Collins answered "no" to 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.

   
   

   In addition, he executed this affidavit statement on the application form:

   . . . 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. The response by Mr. Collins to question no. 9 failed to disclose that on September 18, 1978, he pled guilty to possession of not more than 5 grams of cannabis, a misdemeanor. His plea was in writing and he did not attend court. On September 21, 1978, he was adjudged guilty and sentenced to pay a fine of $495, plus costs totaling $37.75. His attorney paid the fine.

4. The plea was the outcome of Mr. Collins' arrest for possession of controlled substance, Section 893.13, Florida Statutes, on April 21, 1978, at the Orlando International Airport. He was 28 years old at the time of arrest and 29 years old upon sentencing.

5. At hearing, Mr. Collins' explanation of his arrest was that he and some friends were at the airport getting ready to fly to Ft. Lauderdale. The security check lady found a "little bit

   of marijuana," "less than a tenth of a gram of marijuana," in his carry-on bag. He was arrested and put in a holding room at the airport and did not make the flight to Ft. Lauderdale. He also explained that he was on crutches after having broken his hip playing racquetball and was taking pain medication.

6. Mr. Collins further explained that he contacted an attorney, James Russ, a friend of the family, who wanted $10,000 to "make it go away." Mr. Collins did not have that money so he contacted another attorney, Richard Rhodes, who advised him to plead guilty.

7. According to Mr. Collins, he remembered none of this incident until confronted by the Division of Real Estate. Then, in 1997, at the invitation of a Division staff person, Ms. Atkinson, Mr. Collins wrote a letter explaining the circumstances. His letter, dated December 16, 1997, tells a somewhat different story from that given at the hearing:

   . . .

   
   

   I was charged with possession of 1/10 of a gram of cannabis that was on the ground beside me and about 1000 other people,

   O.I.A. [illegible]. My attorney, James

   M. Russ told me just to plead guilty to possession of less than 5 grams of cannabis. It would be a lot cheaper than going to court. He told me to just forget about this and go on with your life and that is exactly what I have done. I paid a fine-no probation. I never even went to court. The only person I saw was James Russ and that is exactly what I've done until your letter came. (Petitioner's Exhibit No. 4.)

   . . .

   
   

8. Except for the amount of marijuana, the police report was more consistent with Mr. Collins' letter than with his account at the hearing. That is, according to the apprehending officer, Mr. Collins fled a search of his shoe, ran to the airport main entrance and starting shaking a bag of marijuana on the sidewalk, where he was apprehended.

9. A letter from attorney Richard Rhodes and the written plea document confirm that it was Mr. Rhodes, not James Russ, who represented Mr. Collins in the airport matter.

10. Mr. Collins averred that he simply forgot the arrest and plea when he filled out his licensure application. In explaining the oversight he also added that he felt comfortable with his "no" answer because he had passed the FBI fingerprint check.

11. Mr. Collins' explanations of the circumstances of his arrest and subsequent guilty plea are inconsistent and evasive. His lack of candor in these matters contributes to the non- credibility of his excuse that he simply forgot the incident altogether when he was filling out his licensure application.

12. In recent years Mr. Collins has been active in his church and his daughter's school. She is 16 years old and he is her sole support, as her mother, his wife, died 7 years ago.

    In the 4 1/2 years that he has been licensed there have been no other complaints related to Mr. Collins' practice of real estate.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 129.569, 120.57(1), and 455.225(5), Florida Statutes.

14. In license discipline cases such as this the agency must prove its alleged violations by proof that is "clear and convincing." 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).

15. 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."

16. 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). Although Mr.

    Collins disputed that his false answer was intentional, his testimony was simply not credible. "[T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted." Walker, supra, p. 654 (special concurring opinion.)

17. The agency met its burden of proof in this case. Mr. Collins was not merely negligent, but rather deliberately avoided disclosure of his plea of guilty as evidenced by the circumstances here and his own evasive testimony and letter to the agency.

18. Even though the underlying plea to a misdemeanor possession would not likely have impeded his licensure, Mr. Collins' concealment materially impacts the agency's duty to

    protect the public. Mr. Collins' motion to dismiss the administrative complaint should be denied.

19. The penalty guidelines adopted by the Florida Real Estate Commission for violations of Section 475.25(1)(m), Florida Statutes, establish the usual penalty of $1000 fine and revocation. Rule 61J2-24.001(3)(n), Florida Administrative Code. The economic hardship of revocation in this case amply justifies waiving the fine. Mr. Collins' community service may be considered when he reapplies for licensure.

RECOMMENDATION

Based on the foregoing, it is hereby,

RECOMMENDED: that the Florida Real Estate Commission enter its Final Order finding that Respondent violated Section 475.25(1)(m), Florida Statutes, and revoking his real estate license.

DONE AND ENTERED this 30th 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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1998.

COPIES FURNISHED:

Laura McCarthy, Esquire Department of Business and

Professional Regulation Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Frederick Wilsen, Jr., Esquire Gillis and Wilsen

1999 West Colonial Drive, 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 Center Tallahassee, Florida 32399

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: 98-002687

Orders for Case No: 98-002687