STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-4753

)

MAUREEN TERESA MOBLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 25, 1999, by videoconference at sites in Tampa and Tallahassee, Florida, before Lawrence P. Stevenson, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Department of Business and Professional Regulation

Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

For Respondent: Leonard H. Johnson, Esquire

Schrader, Johnson, Auvil and Brock, P.A.

Post Office Box 2337 37837 Meridian Avenue

Dade City, Florida 33526-2337 STATEMENT OF THE ISSUE

At issue in this proceeding is whether Respondent committed

the violation of Section 475.25(1)(m), Florida Statutes, alleged

in the Administrative Complaint and, if so, what disciplinary action should be taken against her.

PRELIMINARY STATEMENT

On September 17, 1998, Petitioner issued a one-count Administrative Complaint alleging that Respondent violated the provisions of Section 475.25(1)(m), Florida Statutes, by obtaining her real estate salesperson license "by means of fraud, misrepresentation, or concealment."

Respondent filed an Election of Rights which disputed the factual allegations contained in the Administrative Complaint, and Petitioner referred the matter to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct a formal hearing pursuant to Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner presented the testimony of Steve Pence, Investigator Supervisor for the Division of Real Estate. Petitioner's Exhibits 1 through 3 were received into evidence. Respondent testified on her own behalf and offered no exhibits.

A transcript of the proceeding was filed at the Division of Administrative Hearings on February 24, 1999. Petitioner filed a Proposed Recommended Order on March 5, 1999, and Respondent without objection filed a Proposed Recommended Order on March 18, 1999.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the "Department"), is a state government licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes.

2. Respondent, Maureen Teresa Mobley, is a licensed real estate salesperson in the State of Florida, having been issued license number 0647773.

3. On or about January 22, 1997, Respondent filed an application with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question:

   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.

   
   

   Respondent answered item 9 by checking the box marked "No."

   
   

4. The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows:

   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. (Emphasis added.)

5. On March 3, 1997, Respondent passed the salesperson examination and was issued license number 0647773. From

   March 15, 1997, through April 7, 1997, Respondent was an inactive salesperson. From April 8, 1997, through the present, Respondent

   has been an active salesperson associated with Betty K. Woolridge, an individual broker trading as B. K. Woolridge and Associates, currently in Tampa, Florida.

6. Steve Pence, Investigative Supervisor for the Department, investigated Respondent’s criminal history. He

   discovered that Respondent had "a problem" with a worthless check charge.

7. Mr. Pence obtained a Certificate of Disposition from the Clerk of the Circuit Court for Hillsborough County, Florida. The Certificate indicated that on November 4, 1992, Respondent entered a plea of nolo contendere to a misdemeanor charge of obtaining property with a worthless check, an offense that occurred on July 25, 1991. The Certificate further indicates that adjudication was withheld.

8. After Mr. Pence concluded his investigation, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid criminal disposition, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Florida Statutes" and sought to take disciplinary action against her license. According to the complaint, the disciplinary action sought

   . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. . . .

   
   

9. At the hearing, Respondent testified that six or seven years ago, she wrote a check for $19.00 that was not cleared at her bank. She had moved during this period, and for some reason

   the notification did not reach her. When she found out the check had not been paid, she went directly to the intended payee and made the payment. A year later, she was stopped for a minor traffic violation and was arrested on an outstanding warrant for her arrest on the worthless check charge. At the time, she thought the matter had been taken care of and had no idea there was warrant out for her arrest.

10. Respondent testified that she went before the judge, who noted that she had made good on the check more than a year before her arrest. Respondent admitted pleading no contest to the charge. However, Respondent’s understanding of "adjudication withheld" was that the judge had dismissed the charge, provided she pay the court costs. She never saw the Certificate of Disposition until Mr. Pence brought it to her attention several years later.

11. Respondent's explanation for her failure to disclose the worthless check charge on her application is credited. It is found that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing her application. In so finding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter was reasonable, given the passage of time since the events in question, the minor nature of the underlying charge, and the fact that the judge acknowledged she had long since made good on the $19.00 check at issue.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these

    proceedings. Sections 120.569, 120.57(1), and 120.60(5), Florida

    
    

    Statutes (1997).

    
    

13. Where, as here, the Department proposes to take punitive action against a licensee, proof greater than a preponderance of the evidence is required. Clear and convincing evidence of the licensee's guilt must be established. See Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Munch v. Department of Professional Regulation, 592 So. 2d 1136 (Fla. 1st DCA 1992); Section 120.57(1)(j), Florida Statutes (Supp. 1998) ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute, and shall be based exclusively on the evidence of record and on matters officially recognized.").

14. "[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

15. Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Cottrill v. Department of Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); Sternberg v. Department of Professional Regulation, Board of Medical Examiners, 465 So. 2d 1324 (Fla. 1st DCA 1985); and Hunter v. Department of Professional Regulation, 458 So. 2d 844 (Fla. 2d DCA 1984).

16. Finally, in determining whether Respondent violated the provisions of Section 475.25(1), Florida Statutes, as alleged in the Administrative Complaint, one "must bear in mind that it is, in effect, a penal statute. . . . This being true, the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977). See also Elmariah v. Department of Professional Regulation, 574 So. 2d 164, 165 (Fla. 1st DCA 1990).

17. Pertinent to this case, Section 475.25(1), Florida Statutes, provides that the Florida Real Estate Commission:

    . . . may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit; may impose an administrative fine not to exceed $1,000 for each count or separate offense; and may issue a reprimand, and any

    or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:

    
    

    * * *

    
    

    (m) Has obtained a license by means of fraud, misrepresentation, or concealment.

18. To establish that a licensee committed a violation of Subsection 475.25(1)(m), Florida Statutes, the Department must show not only that the licensee provided false or misleading information on her application, but that she did so knowingly and intentionally. Munch, 592 So. 2d at 1143 (Fla. 1st DCA 1992) ("[A]pplying to the words used [in Section 475.25(1)(m)] their usual and natural meaning, it is apparent that it is contemplated that an intentional act be proved before a violation may be found."). Accord, Walker v. Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998). See also Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95, 97 (Fla. 1st DCA 1974) (statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue"; "[t]o constitute a violation, . . . the legislature intended that the misleading, deceptive and untrue representations must be made willfully (intentionally))"; and Naekel v. Department of Transportation, 782 F.2d 975, 978 (Fed. Cir. 1986) ("[A] charge of falsification of a government document [in this case, an employment

    application] requires proof not only that an answer is wrong, but also that the wrong answer was given with intent to deceive or mislead the agency. The fact of an incorrect response cannot control the question of intent. Were a bare inaccuracy controlling on the question of intent, the 'intent' element of the charge would be subsumed within the distinct inquiry of whether the employee's answer adheres to the true state of facts. A system of real people, pragmatic in their expectations, would not easily tolerate a rule under which the slightest deviation from truth would sever one's tenuous link to employment. Indeed, an SF-171 does not require absolute accuracy. Instead an employee must certify that the answers are 'true, complete and correct to the best of my knowledge and belief, and are made in good faith.' No more than that can reasonably be required. The oath does not ask for certainty and does not preclude a change in one's belief.")

19. Here, it is undisputed that Respondent's answer to the inquiry made in item 9 of the application was inaccurate; however, the evidence adduced at hearing (specifically the unrebutted testimony of Respondent, which the undersigned has credited) establishes that, in responding to the question in the manner she did, Respondent did not intend to deceive or defraud anyone about her past, but rather responded in a manner she believed, in good faith, was appropriate.

20. Further, it does not appear that Respondent’s failure

    to disclose information regarding the worthless check charge resulted in her receiving a license for which she was unqualified. No showing was made that Respondent was not honest, truthful, trustworthy, and of good character, or was otherwise not qualified for licensure, and thus there is no reason to believe that the outcome of the licensure process would have been different had she acknowledged the worthless check charge.

    
    

21. In view of the foregoing, the charge that Respondent "obtained a license by means of fraud, misrepresentation, or concealment in violation of Section 475.25(1)(m), Florida Statutes," should be dismissed.

RECOMMENDATION

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

RECOMMENDED that a Final Order be rendered dismissing the Administrative Complaint.

DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 March, 1999.

COPIES FURNISHED:

Daniel Villazon, Esquire Department of Business and

Professional Regulation Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Leonard H. Johnson, Esquire Schrader, Johnson, Auvil and

Brock, P.A.

Post Office Box 2337 37837 Meridian Avenue

Dade City, Florida 33526-2337

William Woodyard Acting General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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 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: 98-004753

Orders for Case No: 98-004753