STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Petitioner, )

)

vs. ) Case No. 98-5289

)

THOMAS J. CHRISTENSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 3, 1999, by video teleconference at West Palm Beach, Florida, before Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Department of Business and and Professional Regulation

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

For Respondent: Bruce Wilkinson, Esquire

221 East Osceola Street Stuart, Florida 33994

STATEMENT OF THE ISSUE

Whether Respondent is guilty of violating Section 475.25(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

On July 23, 1998, Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), filed an Administrative Complaint against Respondent, Thomas J. Christenson (Christenson), alleging that he violated Section 475.25(1)(m), Florida Statutes, by obtaining a license by means of fraud, misrepresentation, or concealment. Christenson requested an administrative hearing, and the case was forwarded to the Division of Administrative Hearings for assignment to an Administrative Law Judge on December 3, 1998.

At the final hearing, Petitioner called Jonathan Platt as its witness. Petitioner's Exhibits 1-5 were admitted in evidence. Respondent testified in his own behalf. Respondent did not present any exhibits. Official recognition was taken of Chapters 20, 120, 455, and 475, Florida Statutes.

The parties agreed to file proposed recommend orders within ten days of the filing of the transcript, which was filed on February 16, 1999. Petitioner filed its Proposed Recommended Order on February 26, 1999. Respondent filed his Proposed Recommended Order on March 10, 1999. The parties' proposed recommended orders have been considered in rendering this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state licensing and regulatory agency charged with the responsibility

   and duty to prosecute administrative complaints pursuant to the laws of Florida, in particular, Section 20.165 and Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto.

2. On May 18, 1987, Respondent, Thomas J. Christenson (Christenson), submitted an application to the Department for licensure as a real estate salesperson. Included with his application was a sworn affidavit by Christenson dated April 21, 1987, which stated:

   The above named, and undersigned, applicant for licensure as a real estate salesman, upon being duly sworn, deposes and says that he is the person so applying, that 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 knowledge, information, and records permit, without any evasions or mental reservations whatsoever . . .

3. Question six of the application asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld . . ."

4. To question six of the application, Christenson replied, "yes," and stated, "I was convicted of disorderly conduct (misdemeanor) and driving while intoxicated in Pennsylvania in 1981 and disorderly conduct in New Jersey in 1978. I completed probation on both occasions." However, Christenson failed to disclose that on or about January 2, 1987, approximately four

   months before he signed the affidavit on his real estate salesperson application, he had entered a plea of nolo contendere to and was adjudicated guilty of one count of resisting arrest without violence or that he was adjudicated guilty of criminal mischief on or about November 2, 1981, in the Municipal Court of Lower Township, New Jersey.

5. Relying on Christenson's application, the Department issued Christenson a real estate salesperson's license.

6. The records from the Chester County Courts Management System indicate that on April 19, 1984, Christenson entered into a plea bargain on the charges of driving under the influence of alcohol, drivers required to be licensed, and disorderly conduct. He was sentenced to jail for 48 hours, put on probation for

   23 months and required to pay a fine of $102.50. On September 3, 1985, a bench warrant was issued for violation of parole. In 1991, the bench warrant was quashed and the petition was dismissed because Christenson's whereabouts had been unknown since August 15, 1985.

7. On September 5, 1989, Christenson submitted an application to the Department for licensure as a real estate broker. On the application, Christenson signed a sworn affidavit which provided:

   The above-named, and undersigned, applicant for licensure as a real estate broker, upon being duly sworn, deposes and says that he/she is the person so applying, that he/she 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 . . .

   
   

8. Question seven of the application asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Christenson replied "yes" to the question and stated, "I paid a fine for a misdemeanor of disorderly conduct in Wildwood, N.J. in 1977." However, Christenson failed to disclose that on or about January 2, 1987, he had entered a plea of nolo contendere to and was adjudicated guilty of one count of resisting arrest without violence, that he was adjudicated guilty of criminal mischief on or about

   November 2, 1981, in the Municipal Court of Lower Township,

   
   

   New Jersey, that he was convicted of disorderly conduct and driving under influence of alcohol in Pennsylvania in 1981, and disorderly conduct in New Jersey in 1978, that he plea bargained on charges of driving while intoxicated, driving without a license, and disorderly conduct in 1984 in Chester County.

9. In reliance upon Christenson's application, the Department issued Christenson a real estate broker's license.

10. Christenson expected that the Department would conduct a detailed search into his prior records when he answered "yes" on his application for licensure as a real estate salesperson.

11. Christenson testified that he did not reveal that he

    had entered a plea of nolo contendere and was adjudicated guilty of resisting arrest without violence in January 1987 because he did not understand that the conviction was for a criminal offense because the offense had arisen out of a traffic incident and he had paid only a fine and court costs, totaling $150.

12. When Christenson filed his application for a broker's license, he was fully aware that his application for a salesperson's license was already on file with the Department and thought that the Department would also consider the information

    that he had included on the application for a salesperson's license.

13. Since Christenson has held licenses with the Department, he has had no other disciplinary actions taken against his licenses. He has been the top salesman in his office for the last ten years and serves on the Chairman's Advisory Council for Coldwell Banker.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

15. The Department has alleged that Christenson violated Section 475.25(1)(m), Florida Statues, by obtaining his license through fraud, misrepresentation, or concealment. The Department has the burden to establish the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292

    (Fla. 1987).

    
    

16. Section 475.25(1)(m), Florida Statutes, contemplates that "an intentional act be proved before a violation may be found." Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 654 (Fla. 5th DCA 1998).

17. Christenson admitted that he failed to disclose on his application for a real estate salesperson's license that approximately four months before signing the affidavit on his application he pled nolo contendere to one count of resisting

    arrest without violence and that in November 1981, he was adjudicated guilty of criminal mischief. He did reveal, however, that he had been convicted of disorderly conduct and driving under the influence in 1981, and disorderly conduct in 1978, for which he was placed on probation. He also added that he had completed probation for the convictions.

18. Considering Christenson's prior experience with violations of the law, it is not credible that he did not understand that his adjudication of guilt on a charge of resisting an arrest without violence did not constitute conviction of a criminal offense because the incident arose out of a traffic incident and he paid only a fine. He had previously pled nolo contendere in Pennsylvania to charges of disorderly conduct and driving while under the influence and he understood that they were criminal offenses, even though they obviously appeared to have arisen out of a traffic incident.

19. The evidence is not clear whether there were actually two convictions in Pennsylvania of driving under the influence and disorderly conduct, one in 1981 and the other in 1984. If Christenson was referring to the 1984 convictions when he put on his application that he had been convicted in 1981, Christenson was untruthful about the completion of his probation, based on the Chester County records. If Christenson had been convicted in 1981 and 1984, he was not truthful when he filled out his real estate salesperson's license; and given the small amount of time

    between the 1984 conviction and the date of his application for a salesperson's license, it is not credible that Christenson did not remember the 1984 conviction, especially since he was sentenced to spend 48 hours in jail.

20. The Department has established by clear and convincing evidence that Christenson intentionally obtained his licenses through misrepresentation and concealment and, therefore, is guilty of violating Section 475.25(1)(m), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered suspending Thomas J. Christenson's license for one year and imposing an administrative fine of $1,000.

DONE AND ENTERED this 24th day of March, 1999, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND

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 24th 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

Bruce Wilkinson, Esquire

221 East Osceola Street Stuart, Florida 33994

James Kimbler, Acting Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

Lynda L. Goodgame, 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: 98-005289

Orders for Case No: 98-005289