STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

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

)

Petitioner, )

)

vs. ) Case No. 99-3520

)

HOWARD SARVEN WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on September 8, 1999, in Shalimar, Florida.

APPEARANCES

For Petitioner: Laura McCarthy, Esquire

Department of Business

and Professional Regulation Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Drew S. Pinkerton, Esquire

Post Office Box 2379

Fort Walton Beach, Florida 32549-2379 STATEMENT OF THE ISSUE

The issue is whether Respondent's license as a real estate salesperson should be disciplined for the reasons given in the Administrative Complaint filed on May 20, 1998.

PRELIMINARY STATEMENT

This matter began on May 20, 1998, when Petitioner, Department of Business and Professional Regulation, Division of Real Estate, filed an Administrative Complaint against Respondent, Howard Sarven Williams, a licensed real estate salesperson, alleging that Respondent had obtained his license by fraud, misrepresentation, or concealment by failing to disclose in his application that he had pled no contest to 12 counts of keeping a gambling house, a third degree felony. Respondent denied the allegation and requested a formal hearing to contest the preliminary action. The matter was referred by Petitioner to the Division of Administrative Hearings on August 3, 1998, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated September 8, 1998, a final hearing was scheduled on January 13, 1999, in Pensacola, Florida. By agreement of the parties, the matter was continued to May 5, 1999, in Shalimar, Florida. At the request of the parties, the case was again continued to September 8, 1999, at the same location. On September 3, 1999, the case was transferred from Administrative Law Judge P. Michael Ruff to the undersigned.

At the final hearing, Petitioner offered Petitioner's Exhibits 1-5. All exhibits were received in evidence.

Respondent testified on his own behalf.

The Transcript of the hearing was filed on November 8, 1999.

Proposed Findings of Fact and Conclusions of Law were filed by Petitioner on November 17, 1999, and they have been considered by the undersigned in the preparation of this Recommended Order.

None were timely filed by Respondent.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this disciplinary action, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Division), seeks to impose penal sanctions on the license of Respondent, Howard Sarven Williams, a licensed real estate salesperson, on the ground that he failed to disclose that he had pled guilty to a crime when he filed his application for licensure in September 1994. In his Election of Rights Form filed with the Division, Respondent disputed this allegation, contended that his incorrect response "was done with the mistaken belief that it could be answered that way," and requested a formal hearing.

2. Respondent is subject to the regulatory jurisdiction of the Division, having been issued license no. SL 0617682 by the Division in late 1994. The license remained inactive from January 1, 1995, until February 8, 1995; on that date, Respondent became an active salesperson with J.A.S. Coastal Realty, Inc. in Destin, Florida, until June 20, 1998. Between then and December

   1998, he had no employing broker. Whether he is currently employed as a realtor is not of record.

3. It is undisputed that on November 9, 1994, Respondent pled no contest to 12 counts of keeping a gambling house, a felony of the third degree. The offenses related to the illicit placement by Respondent (and two other individuals now deceased) of video gambling machines in approximately 10 VFW clubs and American Legion posts in Northwest Florida. On November 10, 1994, the court withheld adjudication of guilt; it placed Respondent on 10 years' supervised probation; and it ordered him to pay a fine and investigative costs totaling in excess of

   $25,000.00.

   
   

4. Respondent was arrested in late 1993. On September 23, 1994, or before he entered his plea of no contest, Respondent completed and filed with the Division an application for licensure as a real estate salesperson. Question 9 on the application asks in part the following:

   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?

   
   

5. At the time the application was filled out, Respondent had not yet entered his plea of no contest. Therefore, he properly answered the foregoing question in the negative. Although Respondent was statutorily required to notify the Commission in writing of this matter within 30 days after

   entering his plea, he has not been charged with violating that statute.

6. The record does not reveal how the Division learned that Respondent had pled no contest to the charges. In any event, in March 1998, or more than three years later, a Division investigator interviewed Respondent who readily admitted that he had pled no contest to the charges, that he was still on probation, and that he was making monthly payments on the substantial fine imposed in 1994. The issuance of the Administrative Complaint followed.

7. Although the evidence does not support the charge, as narrowly drawn in the Administrative Complaint, it should be noted that Respondent says he mistakenly assumed (without the advice of counsel) that because he had pled no contest and adjudication of guilt was withheld, he had not been convicted of a crime. Thus, he believed that his record was clean. At the same time, the plea is a matter of public record, and Respondent did not intend to make a fraudulent statement in order to secure his license.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

9. As the party seeking to impose penal sanctions on Respondent's professional license, Petitioner bears the burden of

   proving the allegations in the charging document by clear and convincing evidence. See, e.g., Ramsey v. Dep't of Bus. and Prof. Reg., Div. Of Real Estate, 574 So. 2d 291, 292 (Fla. 1st DCA 1992).

10. Under the narrow factual allegations in the Administrative Complaint, it is charged that Respondent "has obtained a license by means of fraud, mispresentation, or concealment in violation of [Section] 475.25(1)(m), [Florida Statutes (1993)]" by failing to disclose on his application for licensure that he had pled no contest to the felony charges in November 1994.

11. The foregoing allegations do not square with the facts. While it is true that Respondent failed to disclose his no contest plea when he answered question 9 on the application for licensure in September 1994, the plea had not yet been entered. Thus, a negative response was then appropriate, and Respondent's answer was technically correct. Therefore, he did not violate Section 475.25(1)(m), Florida Statutes (1993).

12. Section 475.25(1)(p), Florida Statutes, provides that the Florida Real Estate Commission (Commission) may discipline a licensee if he "[h]as failed to inform the commission in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony." While Respondent may have violated this requirement by not informing the Commission in writing within 30 days of his no contest plea,

    he has not been charged with violating that statute, and thus this charge need not be considered. See, e.g., Cottrill v. Dep't of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) ("[p]redicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act").

13. There being less than clear and convincing evidence that Respondent violated Section 475.25(1)(m), Florida Statutes (Supp. 1994), as charged in the Administrative Complaint, the accusatory document should be dismissed, with prejudice.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint, with prejudice.

DONE AND ENTERED this 23rd day of November, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 23rd day of November, 1999.

COPIES FURNISHED:

Herbert S. Fecker, Director Division of Real Estate Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

Laura McCarthy, Esquire Department of Business and

Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900

Drew S. Pinkerton, Esquire Post Office Box 2379

Fort Walton Beach, Florida 32549-2379

Barbara D. Auger, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

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: 98-003520

Orders for Case No: 98-003520