STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EARNESTINE D. DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2343

)

BOARD OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative Hearing on April 1, 1981 at Bartow, Florida, before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Earnestine D. Davis, Pro se

880 Parkham Court

Bartow, Florida 33830

For Respondent: Jeffrey A. Miller, Esquire

Assistant Attorney General Department of Legal Affairs Office of Attorney General The Capitol

Tallahassee, Florida 32301

The Petitioner submitted an application to the Respondent for licensing as a real estate saleswoman on or about July 28, 1980. Upon consideration by the Board of Real Estate this application was denied because of the Petitioner's affirmative answer to question 6 on the application wherein she was requested to describe any arrests in her criminal record. The Petitioner was informed on or about October 31, 1980 that she had been denied licensure by the Board of Real Estate due to her criminal record.

The Petitioner, appearing on her own behalf, testified at the hearing and the parties stipulated that the application be admitted into evidence as Exhibit

1 and that the Petitioner's judgment and sentence be admitted as Exhibit 2. Both exhibits were admitted. In conjunction with the Board's denial of the

Petitioner's application for licensure, the Board informed the Petitioner of her right to request a hearing pursuant to Section 120.57, Florida Statutes, and the opportunity to present evidence to make it affirmatively appear that she meets the qualifications for licensing set forth in Section 475.17(1), Florida Statutes (1979), which right the Petitioner elected to exercise. The issue thus is whether the Petitioner's application for licensure as a real estate agent was properly denied.

FINDINGS OF FACT

1. The Petitioner applied to the Board of Real Estate for licensure as a real estate saleswoman on or about July 28, 1980. After due deliberation the Board informed the Petitioner, on October 31, 1980, that she had been denied licensure due to her answers to question 6 of the application which revealed that she had a criminal record involving an arrest for larceny. The Petitioner exercised her rights to a formal proceeding pursuant to Chapter 120.57, Florida Statutes, and appeared at the hearing pro se, without witnesses, being permitted to testify on her own behalf. The Petitioner admitted that in 1977 she had been arrested and convicted in Leon County for the crime of grand larceny by embezzlement. She was employed as Manager of a Burger King restaurant at the time and was, in effect, convicted of embezzling bank deposits for the restaurant. The Petitioner pled not guilty to the charge but was found guilty pursuant to jury verdict. Upon her conviction she was sentenced to six months in the Florida State Prison at Lowell, Florida, followed by four years probation.

   
   

2. The Petitioner remains on probation for that conviction and is making restitution payments to replace the money stolen. She was unable to testify precisely when her probationary period will expire, but it is to be approximately in October, 1981, and would have been sooner had she not fallen in arrears in making restitution payments. She is now making her payments currently and regularly and there is no other impediment to her being released from probation once full restitution is made.

   
   

3. During the course of her cross-examination the Petitioner also admitted that she had been arrested by the Tallahassee Police Department in 1972 for the crime of larceny and further admitted that she had not disclosed this arrest on her application with the Board of Real Estate. The Petitioner indicated she had forgotten about the arrest and she felt that it was so remote in time as to not be pertinent to the application process. She was found guilty of the charge of larceny in connection with the 1972 arrest, the sentence being payment of a fine and restitution to the victim.

   
   

4. Subsequent to her release from prison, the Petitioner has married, and is the mother of two young sons. She is currently employed by the Polk County School Board as a teacher's aid for disabled children. In order to qualify for this employment position she had to have a high school degree and sufficient college credit hours to meet the requirements for employment as a teacher's aid. Prior to this job she was employed in Polk County as a substitute teacher. The Petitioner is a member of a church and attends regularly and her general demeanor and the overall tenor of her testimony demonstrates that she has matured significantly since the unfortunate criminal behavior in which she engaged end has achieved a stable family life and employment pattern. She has demonstrated significant maturity of character since the time of the arrest and conviction, measured by the fact that she has accepted and successfully discharged the responsibility of marriage, the rearing of two children, and the concomitant duties and responsibilities of employment for the partial support of her family.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.

6. Section 475.17(1), Florida Statutes, provides:

   
   

   An applicant for licensure . . . shall be . . . honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. An applicant shall be competent and qualified

   to make real estate transactions and conduct negotiations the re for

   with safety to investors and to those with whom he may undertake a relation- ship of trust and confidence.

   
   

7. Section 475.25(1)(f), Florida Statutes (1979), provides that the Board of Real Estate may deny an application for licensure for applicants who have:

   
   

   Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this State . . . which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing.

   
   

8. The above provisions thus require that an applicant be possessed of the traits of honesty, truthfulness, trustworthiness and general good character before the Board of Real Estate will grant a license. It such an applicant has in the past been convicted of a crime involving moral turpitude, fraudulent or dishonest dealing, such a conviction under Section 475.17, Florida Statutes, mandatorily operates as a bar to licensing unless the applicant presents evidence which will demonstrate rehabilitation such that he is once again clothed with those character traits required by the above statutory provisions. A crime involving moral turpitude has been defined as "anything done contrary to justice, honesty, principle or good morals". Carp vs. Florida Real Estate Commission, 211 So.2d 240, 241 (Fla. 3rd DCA 1968), quoting from State ex rel. Tullidge vs. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1939). Moral turpitude has been more recently defined as a crime having as its essential element the intent by the perpetrator to defraud or deceive another. See Winestock vs. Immigration and Naturalization Service, 576 Fed. 2d 234 (9th Circuit 1978).

   
   

9. There is no question that the Petitioner herein has been convicted of a crime of moral turpitude in 1977 and, as more lately revealed at the hearing, a crime of moral turpitude in 1972. She intentionally committed an act designed to permanently deprive another of the possession of his property through a deceptive, dishonest or fraudulent act or transaction. This having been established, it falls upon the Petitioner to demonstrate subsequent rehabilitation because of the lapse of time since the offenses in question, her subsequent good conduct and reputation and the acquisition or restoration of those traits of good and honest character such that the above statutory provisions are satisfied and the interests of the public and investors will not likely be endangered by her licensure.

   
   

10. It unfortunately does not appear that a sufficient period of time has elapsed between the Petitioner's last offense and her application to the Board

    of Real Estate, as evidenced chiefly by the fact that the Petitioner remains on probation for her larceny offense. Although the Petitioner testified, and the Hearing Officer has no doubt, that she has never had her probationary status revoked, no definite affirmative evidence was offered at the hearing which would indicate the true nature of the Petitioner's probationary status in terms of when that status will be terminated. The evidence does show by the Petitioner's own admission that her probationary status will remain in effect until she has completed restitution of the monies embezzled and likewise the evidence establishes that those monies have not as yet been repaid and that an approximate $1,500.00 balance remains on the restitution owed. The Hearing Officer is impressed with the Petitioner's candor and demeanor during her testimony and her forthrightness in demonstrating the circumstances of her two convictions, as well as the beneficial effect the maturation process entailed in the establishment of a stable family life and employment situation has had in uplifting and rendering more dominant the salutary and positive facets of her character and personality. She has, however, unfortunately failed to present any evidence of her reputation in the community for fair and trustworthy business dealings or transactions since the last conviction, nor of her reputation in any other respects, such that it can be concluded that she has been sufficiently rehabilitated so as to satisfy the above statutory provisions.

    
    

11. Those persons who are already licensed by the Board of Real Estate are subject to discipline for obtaining a license by means of fraud, misrepresentation or concealment. Section 475.25(1)(m), Florida Statutes (1979). They are further subjected to criminal penalties for making false affidavits or affirmations intended for use as evidence by or before the Board. Section 475.46(1)(g), Florida Statutes (1979). The Hearing Officer does not conclude that the Petitioner's failure to disclose her 1972 arrest for larceny evidences any overt intent to defraud the Board or to make an intentional mispresentation in order to obtain the license, rather the failure to disclose that arrest was in doubt due to the acute embarrassment occasioned the Petitioner by having to reveal it in order to obtain a license. That failure to disclose the previous arrest and conviction, however, in the face of a clear and unequivocal solicitation of such information by the pertinent question on the application certainly can no nothing to affirmatively establish those traits of honesty, truthfulness and trustworthiness such that the Petitioner can be deemed to be sufficiently rehabilitated since her last conviction to justify licensure at this time.

    
    

12. The Petitioner is commended for the manner in which she has conducted herself and accepted responsibility for nor life and for the nurture and support of her family since her last conviction. Her employment record and relative candor at the hearing are positive indications of improved character. The Hearing Officer has no apprehension in concluding therefore, that she should, upon release from her probation and upon appropriate reapplication to the Board of Real Estate, be given every beneficial consideration for licensure.

RECOMMENDATION

In consideration of the foregoing Findings of Fact and Conclusions of Law, as well as the candor and demeanor of the witness, it is

RECOMMENDED that a final order be entered by the Board of Real Estate denying the application of Earnestine D. Davis for licensing as a real estate saleswoman at this time, but that she be given prompt and beneficial consideration for licensure upon appropriate reapplication when her current criminal probationary status has terminated.

DONE AND ENTERED this 7th day of May, 1981 in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1981.

COPIES FURNISHED:

Earnestine D. Davis 880 Parkham Court

Bartow, Florida 33830

Jeffrey A. Miller Assistant Attorney General

Department of Legal Affairs Office of Attorney General Tallahassee, Florida 32301

Nancy Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 80-002343

Orders for Case No: 80-002343