STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) COMMUNITY ASSOCIATION OF MANAGERS, )

)

Petitioner, )

)

vs. ) Case No. 98-5408

)

HASNAIN MEHDI HANIF, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on March 18, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Theodore R. Gay, Esquire

Department of Business and Professional Regulation

401 Northwest Second Avenue, Suite N-607 Miami, Florida 33128

For Respondent: Hasnain Mehdi Hanif, pro se

420 Northeast 76th Street, Apartment 7 Miami, Florida 33138

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed the offenses set forth in the Amended Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By a three-count Administrative Complaint dated October 26, 1998, Petitioner charged that Respondent, a licensed community association manager, violated the provisions of Sections 455.227(1)(h), and 468.436(1)(b)4, Florida Statutes, and

Rule 61-20.001(4)(d), Florida Administrative Code. Respondent filed an Election of Rights which disputed the factual allegations contained in the Administrative Complaint and requested a formal hearing. Consequently, Petitioner forwarded 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.

By motion filed February 26, 1999, Petitioner requested, and by order of March 9, 1999, Petitioner was accorded, leave to file an Amended Administrative Complaint. That complaint, filed February 26, 1999, contained four counts, and charged that Respondent violated the provisions of Sections 455.227(1)(h) and 468.436(1)(b)2, 3, and 4, Florida Statutes, and Rule 61- 20.001(4)(d), Florida Administrative Code. The gravamen of those charges was premised on the contention that when he applied for licensure as a community association manager, Respondent failed to disclose that on or about November 17, 1988, he entered a plea of guilty to, and was found guilty of, knowingly and willfully

making a false statement in obtaining a United States passport in violation of Title 18, United States Code, Section 1542.

At hearing, Petitioner called no witnesses; however, Petitioner's Exhibits 1 through 4 were received into evidence. Respondent testified on his own behalf, but offered no exhibits.

The hearing transcript was filed March 25, 1999, and the parties were accorded 10 days from that date to file proposed recommended orders or argument. The parties elected to file such a proposal or argument and the parties' submissions have been duly-considered.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation (Department), is a state government licensing and regulatory agency charged, inter alia, with the duty and responsibility to regulate the practice of community association management pursuant to the provisions of Sections 455.01 through 455.275, and Sections 468.431 through 468.431, Florida Statutes.

2. Respondent, Hasnain Mehdi Hanif, is a licensed community association manager in the State of Florida, having been issued license number CAM 0020664.

3. On or about March 26, 1997, Respondent filed an application (dated March 5, 1997) with the Department for licensure as a community association manager. Pertinent to this

   case, item (17)(c)2 on the application required that Respondent answer yes or no to the following question:

   2. Have you ever been convicted or been found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor? Yes ( ) No ( )* This question applies to any violation of the laws of any state, territory or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned.

   
   

   *If the answer is yes, you must provide the following information [date of offense, date of arrest, date of disposition, case number, charge, city, state, country, degree of felony or misdemeanor, plea, and disposition] for each offense and submit the following documents, as applicable: police arrest affidavit (need not be a certified true copy); the charges (a certified true copy); and plea, judgment and sentence (certified true copies). Attach separate sheets of paper using the same format or copy and complete this page if you have more than one offense. . . .

   Respondent responded to the question by checking the box marked "No."

4. The application concluded with the applicant's signature immediately below the following affirmation:

   I hereby certify that all of the information provided in connection with this application is true and correct to the best of my knowledge and belief.

   
   

5. Consistent with the requirement imposed by Subsection 468.433(1), Florida Statutes, Respondent included a complete set of fingerprints taken by an authorized law enforcement officer with his application. The fingerprint card identified

   Respondent, Hanif Hasnain Mehdi, as male, Asian, 5' 4" tall,

   
   

   165 pounds, brown eyes, black hair, Social Security number 589-48-1476, and born in Bangladesh on October 16, 1966.

   Following the mandate of Subsection 468.433(1), Florida Statutes, the Department submitted the fingerprint card to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation (FBI) for federal processing.

6. On June 23, 1997, the Department received a report from the FBI which revealed that, based on fingerprint comparisons, Respondent had failed to disclose a criminal history on his application. Specifically, the report revealed that Respondent failed to reveal that he was arrested on August 11, 1988, in Miami, Florida, on a charge of passport fraud, and that he had been convicted on November 17, 1988, of uttering a false statement in applying for a passport.

7. By letter of July 16, 1997, the Department advised Respondent that, given the criminal history received from the FBI, his application was deficient, and requested that he furnish documentation pertinent to the incident reported by the FBI, as well as an explanation of why the incident was not disclosed on his application. The Respondent replied by letter of July 23, 1997, as follows:

   The undersigned asserts that he was never arrested and never charged with any crime; therefore, there was no reason to enclose any explanation. The undersigned is also waiving the 90-day time requirement for approval and denial of the application, but expects that

   as soon as a definite determination is made, the applicant is scheduled for the test.

   The undersigned sincerely expects the Department and the concerned agencies to check their records for accuracy.

   As far as the applicant is concerned, there is no reason why the Department of Business and Professional Regulation should not process his application. (Emphasis in original.)

8. In August 1997, the Department made its first request that the Clerk, United States District Court, Southern District of Florida, provide it with certified copies of the documents related to the criminal matter referenced in the FBI report. That request, as well as numerous subsequent requests, proved fruitless, since the Clerk experienced difficulty in retrieving or locating the records (which had apparently been archived), until on or about August 7, 1998, when certified copies of the

   records were ultimately provided. In the interim, the Respondent (by letter of April 13, 1998) essentially withdrew his waiver and demanded that his application be processed. In response, the Department (not being in receipt of any official documentation regarding the offense) processed Respondent's application and on May 28, 1998, following successful completion of the licensure examination, issued Respondent a community association manager license. Notwithstanding, the Department continued to pursue documentation related to the incident reflected by the FBI report.1

9. Ultimately, in August 1998, the Department received the documentation from the Clerk, United States District Court,

   Southern District of Florida. Those records revealed that Respondent was arrested on August 11, 1988, and charged by a three-count Indictment2 in the United States District Court, Southern District of Florida, Case No. 88-0576 CR-NESBITT, as follows:

   Count I

   
   

   On or about August 1, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant,

   
   

   HASNAIN MEHDI HANIF,

   
   

   in a matter with the jurisdiction of the United State Department of State, a department of the United States, did knowingly and willfully make and use false writings and documents knowing the same to contain false, fictitious, and fraudulent statements and entries to wit, a Baptismal Certificate from the Diocese of Wichita #B5135, and a letter from defendant's mother stating he was a United States citizen, when in truth and in fact, and as the defendant then and there well knew, he was not baptized in Wichita, Kansas, and he was not a United States citizen; in violation of Title 18, United States Code, Section 1001.

   Count II

   
   

   On or about June 27, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant,

   
   

   HASNAIN MEHDI HANIF,

   
   

   an alien, did falsely and willfully represent himself to be a citizen of the United States, in that he stated he was born in Wichita, Kansas, in violation of Title 18, United States Code, Section 911.

   Count III

   
   

   On or about June 27, 1988, at Miami Beach, Dade County, in the Southern District of Florida, the defendant,

   
   

   HASNAIN MEHDI HANIF,

   
   

   did knowingly and willfully make a false statement in an application for a passport with the intent to induce and secure the issuance of a passport under the authority of the United Stated, for his own use, contrary to the laws regulating the issuance of passports and the rules prescribed pursuant to such laws, in that the defendant stated in the application that he was born in Wichita, Kansas, when in truth and in fact, and as the defendant then and there well knew, he was not born in Wichita, Kansas, in violation of Title 18, United Stated Code, Section 1452.

10. The information of record in the criminal case describes the Defendant, Hasnain Mehdi Hanif, as male, 5' 4" tall, 135 pounds, brown eyes, black hair, Social Security number 589-48-1476, and born in Bangladesh on October 16, 1966. Moreover, the Defendant there, Respondent here, were shown to possess identical home phone numbers (305-754-0008); their signatures were in all aspects similar; and their appearances, as evidenced by photographs, were (but for the passage of 10 years and a weight gain of 30 pounds) similar. In all, it cannot be subject to serious debate that the Defendant named in the criminal case and the Respondent in this case are the same person.

11. The Respondent and the United States of America (Government) entered into a plea agreement pursuant to which

    Respondent agreed to plead guilty to Count III of the Indictment and the Government would dismiss the remaining counts.

    Subsequently, Respondent entered a plea of guilty to Count III, and was found guilty of such offense (making a false statement in obtaining a U.S. Passport). The judgment of the court was, as follows:

    IT IS THE JUDGMENT OF THIS COURT THAT: the

    defendant is hereby committed to the custody of the Attorney General of the United States or his authorized representative for confinement for a period of five (5) years and a fine of $1,000.00.

    
    

    IT IS FURTHER ADJUDGED that the execution of said sentence of confinement is hereby suspended and the defendant is placed on probation for a period of two (2) years.

    
    

    IT IS FURTHER ORDERED as a special condition of probation, that if deported, the defendant shall not re-enter the Untied States without the permission of the Attorney General.

    
    

    Counts I and II of the Indictment were dismissed on the motion of the Government.

12. Following receipt of the documentation regarding the criminal conviction, the Department filed the Administrative Complaint at issue in this proceeding which, as amended, charged that Respondent violated Section 455.227(1)(h), Florida Statutes, by obtaining a license by fraudulent misrepresentation; Section 468.436(1)(b)4, Florida Statutes, by obtaining a license by means of fraud, misrepresentation, or concealment of material facts; Rule 61-20.001(4), Florida Administrative Code, and, therefore, Section 468.436(1)(b)2, Florida Statutes, by having failed to

    provide the Department with documentation regarding his criminal record; and Section 468.436(1)(b)3, Florida Statutes, by being convicted of a felony in any court in the United States.

13. At hearing, the Department offered proof, without objection, that its costs of investigation and prosecution, excluding costs associated with any attorney's time, totaled

    $1,344.94, as of February 24, 1999.

    
    

    CONCLUSIONS OF LAW

    
    

14. 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.

15. Where, as here, the Department proposes to take punitive action against a licensee, it must establish grounds for disciplinary action by clear and convincing evidence. Section 120.57(1)(h), Florida Statutes (1997), and Department of Banking and Finance v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996). "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." Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983). Moreover, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See 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). Finally, in determining whether Respondent violated the provisions of law, 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).

16. Section 468.433, Florida Statutes, establishes the licensure requirements for community association managers, as follows:

    1. A person desiring to be licensed as a community association manager shall apply to the department to take the licensure examination. Each applicant must file a complete set of fingerprints that have been taken by an authorized law enforcement officer, which set of fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. The cost of processing shall be borne by the applicant. The department shall examine each applicant who is at least 18 years of age and who the department certifies is of good moral character.

       1. Good moral character means a personal

          history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation.

       2. The department may refuse to certify an applicant only if:

       1. There is a substantial connection between the lack of good moral character of the applicant and the professional

          responsibilities of a community association manager; and

       2. The finding by the department of lack of good moral character is supported by clear and convincing evidence.

       
       

       Rule 61-20.001, Florida Administrative Code, provides the following additional procedures pertinent to the licensure of community association managers:

       61-20.001 Licensing Procedure for Manager's License.

       
       

       * * *

       
       

       1. General Procedure.

          
          

          * * *

          
          

          (d) The applicant shall supply the division with required documentation (as specified below) as to all matters which comprise the applicant's criminal record.

          All documentation must be completely legible. Required documentation generally includes, as applicable:

          1. For arrests, the police arrest affidavit or arrest report or similar document (need not be certified true copy);

          2. The charges (certified true copy);

          3. Plea, judgment and sentence (certified true copy); and

          4. Order of entry into pre-trial intervention, and where applicable, the order of termination of pre-trial intervention showing dismissal of charges (all must be certified true copies).

          * * *

          
          

       2. Good Moral Character.

          1. Unless the division denies the application for incompleteness under paragraph (4)(a) of this rule, the division shall evaluate the application and make appropriate inquiry to determine the applicant's moral character. Demonstration of all of the following will establish the

             applicant's good moral character:

             1. The completion of a criminal history records check by the Florida Department of Law Enforcement and self-disclosure by the applicant that establishes that the applicant has no criminal record; and

             
             

             * * *

             
             

             5. That the applicant has not committed the following in connection with an application:

             
             

             * * *

             
             

             b. Failed to provide full and complete disclosure, or failed to provide accurate information.

          2. If the applicant has failed to establish good moral character under paragraph (5)(a), the division will then consider the following additional factors to determine whether an applicant has good moral character for purposes of licensure under chapter 468, Part VIII, Florida Statutes:

       * * *

       
       

       2. If the applicant has committed a first degree misdemeanor or a felony, and the applicant's civil rights have been restored, this alone shall not preclude a finding of good moral character unless the crime is directly related to the professional responsibilities of a community association manager. Crimes that are deemed to be directly related to the professional responsibilities of a community association manager include, for example, fraud, theft, burglary, bribery, arson, dealing in stolen property, forgery, uttering a forged instrument, sexual battery, lewd conduct, child or adult abuse, murder, manslaughter, assault, battery, and perjury. The applicant has the burden of proving restoration of civil rights by certified true copy of government or court records reflecting such action.

       
       

       * * *

       7. If the applicant makes incomplete, misleading or false statements regarding material facts in making an application, such action will establish the applicant's lack of good moral character, and the application will be denied. . . .

       
       

17. Pertinent to this case, Section 468.436(1), Florida Statutes, provides that the following acts constitute grounds for which the Department may take disciplinary action against a licensee, such as Respondent:

    (a) Violation of any provision of s. 455.227(1).

    (b) . . .

    1. Violation of any lawful order or rule rendered or adopted by the department or the council.

    2. Being convicted of or pleading nolo contendere to a felony in any court in the United States.

    3. Obtaining a license or certification or any other order, ruling, or authorization by means of fraud, misrepresentation, or concealment of material facts.

    Also pertinent to this case, Section 455.227(1), Florida Statutes, provides that the Department may take disciplinary action against a licensee where it is shown that the licensee is guilty of the following:

    (h) Attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the department or the board.

    
    

18. At all times material hereto, Title 18, United States Code, Section 1542 was in effect and described crimes involving the use of false statements to obtain passports and the use of

    passports so obtained. It also prescribed criminal penalties which in 1988 included a maximum term of imprisonment of five years. A 1994 amendment increased the maximum term of imprisonment to ten years. Pursuant to Title 18, United States Code, Section 1(1), any offense punishable by death or imprisonment for a term exceeding one year is a felony.

19. To establish that a licensee committed a violation of Subsection 455.227(1)(h) or 468.436(1)(b)4, Florida Statutes, the Department must show not only that the licensee provided false or misleading information on his application, but that he did so knowingly and intentionally. Munch v. Department of Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992), ("[A]pplying to the words used [in the foregoing provisions] 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, 23 Fla. L. Weekly D292 (Fla. 5th DCA 1998), and Gentry v. Department of Professional and Occupational Regulations, 293 So. 2d 95 (Fla. 1st DCA 1974).

20. Here, the Department has demonstrated that the misleading, deceptive and untrue representations contained in Respondent's application were made willfully (intentionally). See Ellis v. State, 425 So. 2d 201 (Fla. 5th DCA 1983), approved,

    442 So. 2d 213 (Fla. 1983) (circumstantial evidence is sufficient to prove intent). Consequently, it has been shown, as alleged in

    the Amended Administrative Complaint, that Respondent violated the provisions of Sections 455.227(1)(h) and 468.436(1)(b)4, Florida Statutes.

21. The Department has also established that the crime with which Respondent was convicted was a felony and, consequently, Respondent has been shown to have violated the provisions of Section 468.436(1)(b)3, Florida Statutes. Moreover, the use of a false statement to obtain a passport in violation of Title 18, United States Code, Section 1542 has heretofore been found to be a crime involving moral turpitude. See Bisaillon v. Hogan, 257 F.2d 435 (9th Cir. 1958).

22. Finally, the Department has demonstrated that Respondent violated the provisions of Rule 61-20.001(4)(d), Florida Administrative Code, by having failed to provide the Department with documentation regarding his criminal conviction. Consequently, it has been shown that the Respondent also violated the provisions of Section 468.436(1)(b)2, Florida Statutes, as alleged in the Amended Administrative Complaint.

23. Having reached the foregoing conclusions, it remains to resolve the appropriate penalty for Respondent's offenses. Here, the Department suggests, as a penalty for the violations found, that an administrative fine of $5,000.00 be assessed and that Respondent's license be revoked. That proposal is consistent with Sections 455.227(2) and 468.436(3), Florida Statutes. Consequently, there being no apparent reason to deviate from the

Department's recommendation, its proposed penalty is accepted as appropriate. Walker v. Department of Business and Professional Regulation, supra, (Penalty imposed was within Florida Real Estate Commission's statutory authority and would not be disturbed.).

RECOMMENDATION

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

RECOMMENDED that a Final Order be rendered as follows:

1. Finding the Respondent guilty of violating Sections 455.227(1)(h) and 468.436(1)(b)2, 3, and 4, Florida Statutes, as alleged in Counts I through IV of the Amended Administrative Complaint;

2. Requiring that Respondent pay an administrative fine of

   
   

   $5,000.00;

   
   

3. Revoking the Respondent's community association manager license number CAM 0020664; and

4. Assessing costs of investigation and prosecution, excluding costs associated with an attorney's time, in the amount of $1,344.94.

It is further RECOMMENDED that, if the foregoing recommendation is adopted, the Department refer a copy of the record in this case to the State Attorney, Dade County, Florida, for that office to resolve whether the record herein

(Respondent's testimony at hearing and affirmation to the Department) supports a charge of perjury against Respondent.

DONE AND ENTERED this 21st day of April, 1999, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 21st day of April, 1999.

ENDNOTES

1/ As a general rule, a licensee may not be disciplined for conduct engaged in prior to licensure. An exception to this general rule exists, however, where the prelicensure conduct in question is the falsification of the licensee's licensure application. See Taylor v. Department of Professional Regulation,

534 So. 2d 782 (Fla. 1st DCA 1988), and Board of Medicine v. Mata, 561 So. 2d 364 (Fla. 1st DCA 1990).

2/ The nature of his duplicity was stated by Respondent in a sworn statement as follows:

I am a citizen of Bangladesh who was born in Chittagong on October 16, 1966. I came to the United States in 1986 on a student visa issued at the U.S. Consulate, Dhaka. After coming down here I obtained my driver license and a social security card by using my passport issued by the Government of Bangladesh.

On June 27, 1988 I submitted and executed a United States passport application at the Miami Beach Post Office. As proof of citizenship I provided a Florida State

Driver's License and Social Security card and a photo copy of both documents.

I received a letter from the Miami Passport Agency on 7/10/88 requesting my appearance.

On approximately 7/15/88 I received a request for additional documentation of citizenship from passport authorities. I forged a letter of baptism from St. Paul's Church, Wichita, Kansas. I also forged a letter from my mother stating that I am of American citizenship and United Stated birth. I appeared in front of a notary public and produced my drivers license and Social Security card and executed a sworn statement swearing I was a citizen of the United States and of United States birth. I mailed these forged documents to the passport authorities on approximately 7/21/88. (Emphasis in original.)

COPIES FURNISHED:

Theodore R. Gay, Esquire Department of Business and

Professional Regulation

401 Northwest Second Avenue Suite N-607

Miami, Florida 33128

Hasnain Mehdi Hanif

420 Northeast 76th Street Apartment 7

Miami, Florida 33138

Edward Broyles, Executive Director Community Association of Managers Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Woodyard, 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: 98-005408

Orders for Case No: 98-005408