STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 98-2935

)

PATRICIA DIANE MACKOVIC, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Administrative Law Judge on November 5, 1998, in Pensacola, Florida.

APPEARANCES

For Petitioner: Ghunise Coaxum, Esquire

Department of Business and Professional Regulation

400 West Robinson Street, Suite 308 Orlando, Florida 32801-1900

For Respondent: Patricia Diane Mackovic, pro se

5796 Ucita Avenue

Pensacola, Florida 32507 STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent is guilty of obtaining a real estate license by means of misrepresentation or concealment by failing to disclose a plea to a charged crime in her past, in alleged violation of Section 475.25(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

This cause arose upon the filing of a one-count Administrative Complaint on April 21, 1998, charging that the Respondent violated Section 475.25(1)(m), Florida Statutes. The Respondent disputed the allegations of fact and law and requested a formal hearing in accordance with Section 120.57(1), Florida Statutes. In due course the cause was assigned to the undersigned Administrative Law Judge and a formal hearing ensued on November 5, 1998.

The cause came on for hearing as noticed at which the Petitioner presented Exhibits 1 through 4 which would were admitted into evidence. The Respondent testified on her own behalf. Upon concluding the proceeding, a transcript of the testimony was ordered and the parties were afforded the right to file proposed recommended orders, which were timely filed and considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is an agency of the state of Florida charged with licensing and regulating the entry into practice and the practice of real estate sales. Including within its responsibility is the duty to prosecute administrative complaints for alleged violations by licenses of Chapter 475, Florida Statutes, and related rules.

2. Respondent, Patricia D. Mackovic, at all times pertinent hereto, has been a licensed Florida real estate salesperson. She

   was issued license number 0640501 in accordance with Chapter 475, Florida Statutes, in the later part of 1996.

3. On or about January 25, 1984, the Respondent plead nolo contendre to a charge involving welfare fraud (failure to

   disclose a material fact). She was ordered to pay restitution and placed on probation for two years by the circuit court of Escambia County, Florida, but adjudication was withheld. As a result of her discussions with the prosecution in that case and the welfare case worker involved, she was of the belief that she had mistakenly obtained welfare benefits that she was not entitled to (apparently because her income was higher than the relevant limit). She was of the belief that the matter was ultimately dismissed and that, upon paying restitution nothing else remained of the charges. She had a genuine, good faith belief that there was not actually a conviction.

   She also believed at the time, based upon her reading of the judge's order and discussing the matter with her attorney and the prosecutor, that the record involved in the matter would be under seal in any event.

4. On or about July 18, 1996, the Respondent submitted an application for licensure as a real estate salesperson to the Petitioner agency. When she applied for that license she was asked on the application form whether she had ever been convicted of a crime, found guilty or entered a plea of nolo contendre, even if adjudication was withheld. If she answered in the affirmative, she was required to attach an explanation of the circumstances and

   facts. The question applies to any violation of law without regard to whether the applicant for licensure had been placed on probation, had adjudication withheld, was paroled or pardoned. The Respondent responded "no" to this question. She signed the certification at the end of the application, swearing that all answers and information contained in the application were true, correct and complete.

5. Respondent remembered being arrested at 6:30 a.m., by two sheriff's deputies, finger-printed concerning the above charge and going to court. She remembers entering a discussion with the judge and ultimately pleading nolo contendre and being given two years of probation, making restitution of the disputed amount of money concerning the subject welfare payments. The Respondent believed the matter had been dismissed and that it did not constitute a conviction on her record at the time she answered the subject question on the application for licensure.

6. The Respondent believed at the time she answered the question that the charge against her had been dismissed as a consequence of her serving probation (which was shortened by the judge to less than two years), and as a consequence of her making restitution of the moneys involved. The language of the judge's order supports her in that belief to the extent that the judge recites that the "ends of justice and the welfare of society, do not require that you should presently be adjudged guilty and suffer the penalty authorized by law. . .". The Respondent testified that she

   now understood that question nine required disclosure of a conviction, an "adjudication withheld" or a plea, including a plea of nolo contendre. She had answered in the negative, however, because, at the time she answered the question, she believed, based upon the language in the judge's order, her discussion with the judge and her efforts to have the matter resolved after the initial hearing, which resulted in the probation time being reduced, that the matter had been dismissed on the basis of her restitution and serving the reduced probationary period. Thus she had an honest belief at the time she answered the question that she had not been convicted.

7. Because she had an honest belief at the time, even if mistaken, that she had answered the question accurately, she cannot be determined to have committed a fraudulent act or representation, or an act of misrepresentation or concealment in order to obtain her real estate license. In making this factual finding, the undersigned has observed the Respondent's candor, demeanor, and apparent contrition in describing the incident and circumstances involved. The undersigned determines her version of events to be credible and that she never intended to falsely answer the subject question.

   CONCLUSIONS OF LAW

   
   

   The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties hereto. Section 120.57(1), Florida Statutes.

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

9. The Respondent's real estate license may be disciplined if it is determined that she has obtained that license by means of "misrepresentation or concealment." Section 475.25(1)(m), Florida Statutes. The findings of fact above show that Respondent had no intent to defraud or otherwise make a representation characterized by dishonesty or concealment.

10. The intentional misconduct with which she is charged involving deception, dishonesty or fraudulent misrepresentation, requires scienter or guilty knowledge in order for it to be that type of intentional misconduct. The case of Ocean Bank of Miami v. INV-UNI Investment Corporation, 599 So. 2d 694, 697 (Fla. 3rd DCA 1992), is purported by the Petitioner to stand for the proposition that such guilty knowledge may be established by showing that the accused person has been reckless or careless as to the truth of the matter asserted in the representation. Even if that case stands for that proposition it cannot be shown that the Respondent herein was so reckless or careless. Rather, the Respondent was mistaken as to the legal consequences and results of the criminal proceeding in which she was involved in 1984.

    Her overall testimony and demeanor on the witness stand establishes that that it was a good faith mistake as to the legal import of her prior legal altercation. She was not reckless or

    careless in representing that situation in the negative in answering the subject question because she was simply mistaken. She believed, because of her experience in the criminal proceeding and her apparently intensive efforts to remedy what she thought all along was a misunderstanding by the legal authorities involved, that she did not actually have a conviction on her record and had not been adjudged guilty of anything.

11. Her answer in the negative may have been mistaken as a matter of law, but it was a genuinely held, good faith belief which resulted in a mistaken answer. There was no intent to misrepresent the facts concerning her criminal proceeding. She was not reckless or careless as to the truth because she was intensely and personally involved in her efforts to "clear her name" at the time she was told to pay retribution and to serve a probationary period and thus believed that she knew the true situation and circumstances of her criminal proceeding and that by answering "no" to the subject question on the application, she was answering it correctly in her view. Consequently, the Respondent cannot be found guilty of making either an intentional, reckless, or careless misrepresentation in her effort to obtain her real estate license.

12. Consequently, it has not been proven by clear and convincing evidence that the Respondent obtained a real estate license by means of misrepresentation or concealment in violation of Section 475.25(1)(m), Florida Statutes, and therefore the

complaint should be dismissed in its entirety.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses it is, therefore,

RECOMMENDED:

That the Respondent be found not guilty of violating Section 475.25(1)(m), Florida Statutes, as charged in the Administrative Complaint, and that that Administrative Complaint be dismissed in its entirety.

DONE AND ENTERED this 3rd day of February, 1999, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Patricia Mackovic 5796 Utica Avenue

Pensacola, Florida 32507

Ghunise Coaxum, Esquire Department of Business and

Professional Regulation Suite N-308

400 West Robinson Street Orlando, Florida 32801-1772

Lynda L. Goodgame, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

P. MICHAEL RUFF Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847 www.doah.state.fl

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1999.

Tallahassee, Florida 32399-0792

James Kimbler, Acting Division Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street Orlando, Florida 32302-1900

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: 98-002935

Orders for Case No: 98-002935