vs. ) Case No. 00-0426
Respondent. )
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 9, 2000, by video teleconference at sites in Tallahassee and Miami, Florida.
For Petitioner: Sunia Y. Marsh, Esquire
At issue in this proceeding is whether Respondent committed the offense set forth in the Administrative Complaint and, if so, what penalty should be imposed.
On October 26, 1999, Petitioner issued a two-count Administrative Complaint which charged Respondent, a licensed real estate salesperson, violated certain provisions of Section 475.25, Florida Statutes. Count I alleged that Respondent violated the provisions of Subsection 475.25(1)(m), Florida Statutes, by having "obtained a license by means of fraud, misrepresentation, or concealment," and Count II alleged that Respondent violated Subsection 475.25(1)(e), Florida Statutes, by having "failed to disclose in his application for a real estate sales person [license] information that Rule 61J2- 2.027(2), Florida Administrative Code, requires." The gravamen of the charges was Petitioner's contention that in applying for licensure as a real estate salesperson Respondent failed to fully disclose his criminal history.
Respondent filed an election-of-rights wherein he disputed the allegations of fact contained in the Administrative Complaint. Consequently, 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, Florida Statutes.
At hearing, Petitioner called Keith Chapman as a witness, and Petitioner's Exhibits 1-8 were received into evidence. 1/ Respondent testified on his own behalf, but offered no exhibits.
A transcript of hearing was filed April 10, 2000, and the parties were accorded 10 days from that date to file proposed recommended orders. Petitioner elected to file such a proposal and it has been duly-considered.
Petitioner, Department of Business and Professional Regulation, Division of Real Estate (Department), is a state government licensing and regulatory agency charged with the duty and responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto.
Respondent, Terrell Laverne Solomon, is now, and was at all times material hereto, a licensed real estate salesperson in the State of Florida, having been issued license number SL- 0653405.
On or about June 16, 1997, Respondent filed an application (dated June 10, 1997) 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" (by checking the appropriate box) 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 the question by checking the box marked "Yes," and attached a handwritten note which revealed the following details:
I pleaded guilty for drug possession and carrying a concealed weapon. However, I
don't know the exact date, but it been [sic]
10 to 15 years ago. I also have a conviction for driving under the influence in [19]84.
The application concluded with Respondent's acknowledgement 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.
On July 28, 1997, Respondent passed the salesperson examination and was issued license number SL-0653405 as an inactive salesperson. From September 17, 1997, through the date of hearing, Respondent has been licensed as an active salesperson associated with Anita Berger Realty, Inc., a broker corporation located at 21414 West Dixie Highway, North Miami Beach, Florida.
Following approval of Respondent's application, and his licensure as a real estate salesperson, the Department received
the results of a state and federal records search which revealed a criminal history that included charges not disclosed on Respondent's application. That records search revealed the following criminal history in the Circuit and County Courts, Eleventh Judicial Circuit, Dade County, Florida (where Respondent was "convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld"): 2/
On April 8, 1978, Respondent was arrested and charged in Case No. M78-56023 with misdemeanor Battery, Resisting an Officer Without Violence, and Disorderly Conduct; and on August 19, 1981, was convicted of each charge and sentenced to a term of probation with special conditions.
On September 17, 1979, Case No. 79- 12245, Respondent, upon entry of a plea of guilty, was found guilty of Shooting into an Occupied Dwelling; however, the court withheld an adjudication of guilt.
(c) On June 17, 1985, Case No. 85-8549,
Respondent, upon entry of a plea of guilty, was adjudicated guilty of Leaving the Scene of an Accident Involving Personal Injury (Count I), a third degree felony proscribed by Section 316.027, Florida Statutes, and Possession of a Controlled Substance, to- wit: Heroin (Count 2), a third degree felony proscribed by Section 893.13, Florida Statutes; however, the court stayed and withheld the imposition of sentence as to each count and placed Respondent on probation for a period of 4 years under the supervision of the Department of Corrections. Respondent's probation was subsequently revoked and on April 18, 1989, and he was committed to the custody of the Sheriff of Dade County, Florida, to be imprisoned for a term of 24 days, with
credit for time served.
On December 30, 1989, Case No. 89- 50035, Respondent was arrested and charged with carrying a concealed firearm, and on December 31, 1989, was convicted and sentenced (the specifics of which are not of record).
As heretofore noted, Respondent's application did reveal that he had entered a plea of "guilty for drug possession" (ostensibly the June 17, 1985, conviction) and "carrying a concealed weapon" (ostensibly the December 30, 1989, conviction). The remaining criminal history was not disclosed.
Upon discovery of such information, the Department apprised Respondent of its discovery and requested an explanation. Respondent addressed the Department's concerns as
follows:
In regard with Section 455.225(1), Florida Statutes. I answer [sic] Question 9 on my application truthfully and to best of my ability. It was never my intention to violate Section 455.225 and 475.21, Florida Statutes. I enclose[d] a letter from Metro- Dade Police Department [with my application which] stated that I have felony arrest and misdemeanor arrest. At the time I was being finger printed for DBPR, I ask [sic] the finger printing officer can I have a copy of my convictions and was denied. I also enclosed a hand written letter statement, all the conviction I can remember, and that's why I check [sic] Question 9 Yes.
I'm not proud of my past life, but I work hard to obtain my real estate license and wouldn't do anything to jeodarize [sic] my license. I just didn't remember my past
convictions, that's why I answer [sic] question nine Yes. (Emphasis in original.)
Thereafter, on October 26, 1999, the Department issued the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid incidents on his application, charged that Respondent has "obtained a license by means of fraud, misrepresentation, or concealment" in violation of Section 475.25(1)(m), Florida Statutes (Count I), and that Respondent has "failed to disclose in his application for a real estate salesperson [license] information that Rule 61J2-2.027(2), Florida Administrative Code, requires" and therefore, violated Section 475.25(1)(e), Florida Statutes (Count II). According to the complaint, the disciplinary action sought for such violations was stated to be
as follows:
. . . [T]he penalty for each count or
separate offense 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. 3/
Consistent with the explanation he offered the Department for his failure to fully disclose his criminal history, Respondent explained, at hearing, that his response to item 9 on the application was, at the time, an accurate
reflection of his recollection, and that it was not his intention to mislead the Department by failing to disclose the matters he overlooked. Specifically, the Respondent offered the following explanation at hearing:
THE COURT: Why didn't you disclose your 1978 and 1979 problems with the disorderly conduct and battery and the discharging the firearm?
THE WITNESS: There's no reason. When I went to get the fingerprint card done, I asked the officer, can I get a print out of my convictions and my felony record, and he told me that he didn't do that and I didn't know that I had to take it a step further.
I only checked Question 9, yes, to show that I did have criminal past and I didn't know that I had to take it a step further than that. If I would have known that, I would have took the opportunity to go do that.
But I didn't know that I had to check the question and to present that for the application.
THE COURT: What the question asked you, if you answered, yes, then attach the details, the dates and the outcome.
THE WITNESS: Yes, that's true and I know I should have done it. But I asked them to give me -- I couldn't put it on nobody but myself. I should have taken it a step further. To get the convictions. I wasn't trying to hide anything from the Department.
* * * CROSS-EXAMINATION
BY MS. MARSH:
Q Mr. Solomon, looking at your 1978 charge with the battery, resisting the officer and disorderly conduct and the 1979 charge with the shooting in the occupied dwelling . . . were you considering that if you disclosed those to the commission, that
they would deny you a licensure?
A No, that's why I checked the question, yes. I don't know how you look at it, but if I wanted to tell the truth about it, I would have checked, no, to the felony arrest.
* * *
Q Did you believe the Department would find all of your prior criminal cases?
A Yes. I knew that they would find it but I didn't know that it would lead to this here, because I did check the question, yes. I didn't know it would lead to this, I would have taken that extra day and not taken the test and gotten the background check.
(Transcript, pages 24-27).
Here, Respondent's explanation for his failure to disclose the full scope of his criminal history is credited, and it is resolved that, at the time he submitted his application, Respondent did not intend to mislead or deceive the Department. In so concluding, it is observed that Respondent's testimony was candid, the nature of the incidents he disclosed were serious, as opposed to trivial, and his assumption that the complete details of his criminal history would be revealed when the Department (as it stated it would do on the application) checked his response against local, state, and federal records was well founded. Consequently, while his response to item 9 on the application was incomplete, Respondent's failure to more fully detail his criminal history is more appropriately characterized as a careless, thoughtless, or heedless act as opposed to a
willful or intentional effort to mislead the Department as to the true character of his history.
CONCLUSIONS OF LAW
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.
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. 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 ("Findings of fact shall be based on a preponderance of the evidence except in penal or license disciplinary proceedings or except as otherwise provided by statute").
"'[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, from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Moreover, in resolving cases of this nature, 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 Section 475.25(1), 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).
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:
* * *
Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.
* * *
(m) Has obtained a license by means of fraud, misrepresentation, or concealment.
Pertinent to the perceived violation of Subsection 475.25(1)(e), Florida Statutes, Rule 61J2-2.027(2), Florida Administrative Code, provides:
The applicant must make it possible to immediately begin the inquiry as to whether the applicant is honest, truthful, trustworthy, of good character, and bears a good reputation for fair dealings, and will likely make transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relation of trust and confidence. The applicant is required to disclose:
if ever arrested or convicted of a crime, or if any criminal or civil proceeding is pending against the applicant, or if any judgment or decree has been rendered against the applicant in a case wherein the pleadings charged the applicant with fraudulent or dishonest dealings. . . .
To establish that a licensee committed a violation of Subsection 475.25(1)(m), as alleged in Count I of the Administrative Complaint, 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 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, 23 Fla. L.
Weekly D292 (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.")
Here, the proof demonstrates with the requisite degree of certainty that Respondent failed to fully disclose his
criminal history as required by item 9 on the application. What remains to resolve is whether Respondent's failure may be reasonably characterized as "willful," so as to constitute a violation of Subsection 475.25(1)(m), Florida Statutes, or is more appropriately characterized as careless or passive in character so as to constitute a violation of Rule 61J2-2.027(2), Florida Administrative Code, and, therefore, Subsection 475.25(1)(e), Florida Statutes. To reach a resolution of the issue, it is necessary to resolve whether Respondent's failure to disclose was "willful" or "intentional."
Where, as here, the legislature has not defined the words used in a phrase, the language should usually be given its plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984). The American Heritage Dictionary of the English
Language, New College Edition (1979) defines "willful" as "[s]aid or done in accordance with one's will; deliberate." Perhaps more informative to the instant case, Black's Law Dictionary, Fifth Edition (1979) defines "willful" as follows:
Proceeding from a conscious motion of the will; voluntary. Intending the result which actually comes to pass; designed; intentional; not accidental or involuntary.
An act or omission is "willfully" done, if done voluntarily and intentionally and with the specific intent to do something the law forbids, or with the specific intent to fail to do something the law requires to be done;
that is to say, with bad purpose either to disobey or to disregard the law.
Willful is a word of many meanings, its construction often influenced by its context. Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495.
The word [willfully] often denotes an act which is intentional, or knowing, or voluntary, as distinguished from accidental. But when used in a criminal context it generally means an act done with a bad purpose; without justifiable excuse; stubbornly, obstinately, perversely. The word is also employed to characterize a thing done without ground for believing it is lawful or conduct marked by a careless disregard whether or not one has the right so to act. United States v. Murdock, 290 U.S. 389, 394, 395, 54 S.Ct. 223, 225, 78
L.Ed. 381.
Whatever the grade of the offense the presence of the word "willful" in the definition will carry with it the implication that for guilt the act must have been done willingly rather than under compulsion and, if something is required to be done by statute, the implication that a punishable omission must be by one having the ability and means to perform. In re Trombley, 31 Cal.2d 801, 807, 193 P2d 734,
739.
A willful act may be described as one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently. A willful act differs essentially from a negligent act.
The one is positive and the other negative.
Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification.
Applying the words used in Subsection 475.25(1)(m), Florida Statutes, their usual and customary meaning, it is
apparent that, to establish a violation of that subsection in this case, the Department must show not only that Respondent failed to fully disclose his criminal history, but that he did so "intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from . . . carelessly, thoughtlessly, heedlessly, or inadvertently." Black's Law Dictionary, Fifth Edition (1979), supra. Here, Respondent's failure to completely disclose his criminal history partakes more of a careless, thoughtless, or heedless act than one done with bad motive or spite. Consequently, Respondent's failing has not been shown to constitute a violation of Subsection 475.25(1)(m), Florida Statutes, but has been shown to have violated the provisions of Rule 61J2-2.027(2), Florida Administrative Code, and, therefore, Subsection 475.25(1)(e), Florida Statutes.
Having resolved that Respondent violated the provisions of Subsection 475.25(1)(e), Florida Statutes, by having failed to comply with the requirements of Rule 61J2- 2.027(2), Florida Administrative Code, it remains to resolve the appropriate penalty that should be imposed. Pertinent to this issue, Rule 61J2-24.001(3)(f), Florida Administrative Code, provides that for a violation of Subsection 475.25(1)(e), Florida Statutes, "[t]he usual action of the Commission shall be to impose a penalty from an 8 year suspension to revocation and an administrative fine of $1,000." Here, giving due regard for
the Commission's usual penalty, as well as the aggravating and mitigating circumstances set forth in Rule 61J2-24.001(4), Florida Administrative Code, including the time that has elapsed since the offenses occurred and the absence of any proof that the Department (given the nature of the offenses) would have altered its decision (to approve Respondent's application for licensure) had it known of Respondent's convictions, an appropriate penalty for the violation found is a suspension for
30 days and an administrative fine of $250.
RECOMMENDED that a final order be rendered adopting the foregoing Findings of Fact and Conclusions of Law, and which, for the violation found, imposes a 30-day suspension and an administrative fine of $250.
DONE AND ENTERED this 2nd day of May, 2000, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of May, 2000.
1/ Petitioner filed, post-hearing, a Notice of Filing Redacted Exhibit and Amendment to Proposed Recommended Order, whereby Petitioner offered a redacted (modified) copy of a portion of its Exhibit 3 received into evidence. The redacted copy has been marked as Petitioner's Exhibit 9; however, since it was not offered at hearing and does not accurately depict Respondent's criminal record that is relevant to this case, it has been rejected. At paragraph 5 of this Recommended Order are the only criminal charges deemed relevant to this case.
For the record, the reader should note that the court reporter attached copies of Petitioner's Exhibits 1-8 that were available to Respondent at the hearing location in Miami, Florida. Also submitted to the agency with this Recommended Order are Petitioner's Exhibits 1-8, available at the hearing location in Tallahassee, Florida, as well as Petitioner's Exhibit 9 for identification, filed post-hearing.
2/ Petitioner also offered proof (Petitioner's Exhibit 7) that on July 31, 1994, in Case No. 94-36610, the court disposed of a charge of Disorderly Intoxication that had been filed against Respondent by withholding adjudication and crediting Respondent with time served. No further record exists concerning the nature of the charge or its disposition, and such matter was not charged in the Administrative Complaint as a basis for disciplinary action. Consequently, it has not been deemed relevant to these proceedings. See Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987) and other authority cited in the Conclusions of Law.
3/ The Department also sought an award of costs as provided for by Section 455.227(3), Florida Statutes; however, it offered no proof, at hearing, regarding what costs, if any, it incurred.
Consequently, there is no record basis on which to make a recommendation concerning any cost award.
Sunia Y. Marsh, Esquire Department of Business and
Herbert S. Fecker, Director Division of Real Estate Department of Business and
Barbara D. Auger, General Counsel Department of Business and
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.
