STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYNETTE HELGERSON DAVIS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-418

)

BOARD OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on May 29, 1981, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Ms. Lynette Helgerson Davis

121 Tradewinds Condominium Highway A1A South

St. Augustine, Florida 32084

For Respondent: Jeffrey A. Miller, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301 PROCEDURAL BACKGROUND

These proceedings began on January 18, 1981 when the Petitioner, Ms. Davis, requested a hearing on the denial of her application for a license as a real estate salesperson by the Florida Board of Real Estate, Respondent. On February 24, 1981, the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing was noticed for and held on May 29, 1981.

At the hearing Petitioner presented herself as her witness and offered Petitioner's Composite Exhibit A and Exhibit B which were received without objection into evidence. Respondent presented no witnesses but offered Respondent's Composite Exhibit 1 which was received without objection into evidence. At the beginning of the hearing on the request of the Hearing Officer the Board of Real Estate (Board) stipulated that the sole grounds for the denial of a license to Ms. Davis were her arrest for breaking and entering with the intent to commit a misdemeanor and for illicit cohabitation and also for her failure to disclose her arrest on the cohabitation charge.

At the conclusion of the hearing the parties were informed of their right to submit proposed findings of fact and proposed orders. Section 120.57(1)(b)4. Florida Statutes. Neither party indicated a desire to make such submissions.

ISSUE PRESENTED

Has Ms. Davis demonstrated that she is honest, truthful, trustworthy, and of good character, and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (Supp. 1980)?

FINDINGS OF FACT

1. In October, 1980 Ms. Davis filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated October 21, 1980 the Board acknowledged receipt of the application and requested additional information concerning Ms. Davis' answer to question #6. Ms. Davis responded on November 15, 1980 when she sent copies of her arrest record to the Board.

   
   

2. Question #6 of the application states:

   
   

   Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state, or nation including traffic offenses (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, or pardoned or paroled?

   
   

   Ms. Davis responded that, "yes," she had. The question further requested the details including the outcome in full. In response Ms. Davis attached a separate sheet in which she said:

   
   

   To whom It May Concern:

   
   

   I was arrested for illegal entry in 1974 or 1975 in Duval County, Jacksonville, Florida.

   
   

   The sentence was a misdemeanor. I was told if I pleaded guilty I would receive probation but if I tried to fight it in front of a jury I would receive time in prison if I lost. So I plea bargained with the Judge and Attorney.

   My car was at the scene but there was never proof of who entered the apartment. My sentence was 4 years probation which I have completed. The Judge told me my sentence would be with adjudication withheld.

   
   

   I have finished my probation and have not or ever will be in any other trouble. I am married now and my husband and myself have a very good a job managing a condominium. We both are bonded and I am also a Notary. I want very much to become a licensed Real Estate Salesperson. I believe that I will be an asset to the Real Estate Business. I would

   never do anything to tarnish the Real Estate name.

   
   

   Thank you in advance for any consideration you can give me concerning my past which I would like to bury and not have it interfere with a profession I want so much.

   
   

3. At the time Ms. Davis answered question #6 she did not recall her arrest for cohabitation. It happened when she was eighteen years old and living with her boyfriend. The charges were dropped when she and her friend told the judge that they intended to be married, which they later did. The complaint against them was filed by Ms. Davis' mother.

   
   

4. At the final hearing Ms. Davis explained that she failed to reveal the cohabitation arrest because she forgot it. To her it was quite insignificant because the charges were dropped and because of the considerable passage of time since the event. This testimony is credible. Ms. Davis voluntarily disclosed her more serious arrest (the one for breaking and entering) and informed the Board about the cohabitation arrest as soon as her memory had been refreshed when she first obtained her arrest records. There is no evidence that she intentionally attempted to conceal the cohabitation arrest.

   
   

5. On December 10, 1974 Ms. Davis pled guilty to breaking and entering with intent to commit a misdemeanor. Adjudication was withheld and she was placed on probation for the term of three (3) years beginning on February 25, 1975. She paid $1,200.00 in restitution and successfully completed her probation term.

   
   

6. Since her guilty plea Ms. Davis has been a trustworthy law abiding citizen of Florida. Beginning in November, 1979 she has been a rental manager at the Tradewinds Condominium in St. Augustine, Florida. At that 60-unit complex she manages the rentals for unit owners and has been treasurer for the owners association. She is bonded for $25,000.00 by Nationwide Insurance Company and handles an account amounting to over $250,000.00 per year. Two owners at the condominium have submitted letters of recommendation on her behalf to the Board.

   
   

7. At the final hearing Ms. Davis was credible and mature. She was forthright in answering questions from both the Hearing Officer and from counsel for the Board. Her demeanor was excellent.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 120.65, Florida Statutes.

   
   

9. The requirements for licensure by the Board of Real Estate are set out in Section 475.17, Florida Statutes (Supp. 1980) which provides in pertinent part:

   
   

   1. An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair

      dealing. An applicant for an active broker's license or a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, possession, or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this

      chapter had the applicant then been registered, the applicant shall be deemed not to be qualified, unless, because of lapse of time

      and subsequent good conduct and reputation, or other reason deemed sufficient, it shall appear to the board that the interest of the public and investors will not likely be endangered by the granting of registration.

      
      

10. Grounds for revoking or suspending of a license which are referred to above are provided in Section 475.25, Florida Statutes (1979) which include:

    
    

    Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state or any other state or of the United States, which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing. Section 475.25(1)(f), Florida Statutes (1979).

    
    

    These grounds further include:

    
    

    Obtained a license by means of fraud, misrepresentation, or concealment; or if the licensee is confined in any state or federal prison or mental institution or if, through mental disease or deterioration, the licensee can no longer safely be entrusted to deal with the public or in a confidential capacity; Section 475.25(1)(m), Florida Statutes (1979).

11. The rules of the Board further requires that an applicant is "required to disclose whether he has been arrested or convicted of a crime, or if any criminal or civil proceedings is pending against him, or if any judgment or decree has been rendered against him in a case wherein the pleadings charged him with fraudulent or dishonest dealings," 21V-2.27(2)(c), Florida Administrative Code.

    
    

12. Ms. Davis did not initially disclose her arrest for cohabitation when she first filed her application with the Board. After being informed that she needed to supply additional information in answer to question #6, Ms. Davis herself obtained information about the cohabitation charge and disclosed it to the Board. She has not been guilty of attempting to willfully conceal that arrest or of misrepresenting her past. She made an honest mistake in initially forgetting the arrest.

    
    

13. If Ms. Davis had been licensed by the Board at the time she pled guilty to breaking and entering with the intent to commit a misdemeanor, that plea could have been the basis for discipline against her license. Section 475.25(1)(f), Florida Statutes (1979). The relevancy, however, of that plea to her present good character has been attenuated by the lapse of time. Section 475.17(1), Florida Statutes (Supp. 1980).

    
    

14. Since the time of her plea her conduct and reputation have been good. For the last year and a half as the rental manager and treasurer for the Tradewinds Condominium Owners Association she has held a position of considerable trust with no defalcations. Petitioner has met her burden of establishing good moral character as required by Section 475.17(1), Florida Statutes (Supp. 1980).

RECOMMENDATION

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

That the Board of Real Estate enter a final order finding Petitioner qualified pursuant to Section 475.17(1), Florida Statutes (Supp. 1980), to take the license examination provided for in Section 475.175, Florida Statutes (1979) to be licensed as a real estate salesperson in the State of Florida.

DONE and RECOMMENDED this 9th day of June, 1981, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

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 9th day of June, 1981.

COPIES FURNISHED:

Ms. Lynette Helgerson Davis

121 Tradewinds Condominium Highway A1A South

St. Augustine, Florida 32084

Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Docket for Case No: 81-000418

Orders for Case No: 81-000418