STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-2930

) VICTOR JOHN FONTANA, III, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Naples, Florida, on November 4, 1998.

APPEARANCES

For Petitioner: Laura McCarthy

Deputy Chief Attorney Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Edward McBride

Cardillo, Keith & Bonaquist, P.A. 3550 East Tamiami Trail

Naples, Florida 34112-4905 STATEMENT OF THE ISSUE

The issue is whether Respondent obtained a real estate salesperson's license by fraud, misrepresentation, or concealment, in violation of Section 475.25(1)(m), Florida Statutes, and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 20, 1998, Petitioner alleged that Respondent submitted an application for a license as a real estate salesperson on July 10, 1996. He allegedly denied having ever been convicted of a crime, found guilty, or entered a plea of guilty or no contest to a crime. The Administrative Complaint alleges that Respondent pleaded no contest on

February 1, 1989, to misdemeanor battery, and he was convicted of disorderly conduct on February 15, 1979. The Administrative Complaint also seeks costs, pursuant to Section 455.227(3), Florida Statutes.

Respondent requested a formal hearing.

At the hearing, Petitioner called no witnesses and offered into evidence six exhibits. Respondent called two witnesses and offered into evidence two exhibits. All exhibits were admitted.

The court reporter filed the transcript on November 23, 1998.

FINDINGS OF FACT

1. By application attested July 10, 1996, Respondent requested licensure as a real estate salesperson.

2. Question 9 of the application asks:

   
   

   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 may 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."

   * * *

   
   

   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.

   
   

3. Respondent checked the "no" box and did not offer any explanation on the application form.

4. Petitioner issued Respondent a license. After placing it for a month with another broker, Respondent placed the license with Sun Coast Realty Group, Inc., a broker-corporation trading as Century 21--Sun Coast Realty Group, in Fort Myers. Respondent's license remained active until October 6, 1997, when he requested that Petitioner inactivate the license until the pending disciplinary charges were resolved.

5. Respondent's broker testified at the hearing. He testified that the customers were happy with Respondent, who dealt very honestly with the customers. The broker explained that Respondent, not the broker, elected to discontinue practicing real estate sales until the disciplinary matters were

   resolved, and the broker would rehire him, if Respondent retains his license, following the conclusion of this proceeding.

6. On or about December 19, 1977, Respondent pleaded no contest and was convicted of a misdemeanor of disorderly conduct or breach of the peace in connection with a bar fight in which he was engaged in Connecticut. Then aged 20, Respondent was employed as a bouncer at the bar at which a fight broke out. Several arrests ensued. Respondent did not throw the bar stool that resulted in the injuries. Respondent was fined about $50.

7. About 12 years later, on or about February 1, 1989, Respondent pleaded no contest to misdemeanor battery in Lee County. The court withheld adjudication and placed Respondent on probation for one year. Respondent served the probation without incident. No one was seriously injured in the incident.

8. About three years ago, Respondent attended Charter Glade, where he remained 10 days for substance-abuse treatment. He attended his follow-up therapy, and now speaks to his pastor at church for additional advice. Respondent has not consumed alcohol since then, and he has a wife and two children.

9. Respondent's claim that he did not disclose the criminal matters because he thought they had been sealed or expunged is discredited. Respondent concealed these matters. He did not follow the advice on the application form to ensure that these matters were sealed or expunged. He testified inconsistently at first as to his age at the time of the first incident.

10. On the other hand, Respondent has eliminated the main source of his past problems: alcohol. He has also demonstrated his integrity in the practice of real estate sales.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

12. Section 475.25(1)(m) provides that Petitioner may discipline the license of a licensee who has obtained his license by fraud, misrepresentation, or concealment.

13. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

14. Rule 61J2-24.001(3)(n) provides that, for a violation of Section 475.25(1)(m), "the usual action of the Commission shall be to impose a penalty of revocation and an administrative fine of $1,000."

15. Section 455.227(3) provides

    
    

    In addition to any other discipline imposed pursuant to this section or discipline imposed for a violation of any practice act, the board, or the department when there is no board, may assess costs related to the investigation and prosecution of the case excluding costs associated with an attorney's time. In any case where the board or the department imposes a fine or assessment and the fine or assessment is not

    paid within a reasonable time, such reasonable time to be prescribed in the rules of the board, or the department when there is no board, or in the order assessing such fines or costs, the department or the Department of Legal Affairs may contract for the collection of, or bring a civil action to recover, the fine or assessment.

16. Petitioner presented no evidence of recoverable costs at the hearing and did not ask the administrative law judge to retain jurisdiction over costs, so this claim is waived.

17. Except for the fraudulent concealment itself, there are no aggravating circumstances in this case. To the contrary, Respondent seems to have corrected his ways and demonstrated the requisite integrity to discharge his professional responsibilities as a real estate salesperson. Additionally, he has already served a self-imposed suspension of 14 months through the date of this recommended order.

RECOMMENDATION

It is

RECOMMENDED that the Florida Real Estate Commission enter a final order finding Respondent guilty of a violation of Section 475.25(1)(m), Florida Statutes, imposing an administrative fine of $1000, and suspending Respondent's license for 18 months, with full credit against the suspension for the period since

October 6, 1997, that Respondent has voluntarily rendered his license inactive due to the pendency of this proceeding.

DONE AND ENTERED this 8th day of December, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 December, 1998.

COPIES FURNISHED:

Laura McCarthy

Deputy Chief Attorney Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Edward McBride

Cardillo, Keith & Bonaquist, P.A. 3550 East Tamiami Trail

Naples, Florida 34112-4905

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

James Kimbler, Acting Division 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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 98-002930

Orders for Case No: 98-002930