STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD LEROY KIEBLER, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1632

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF REAL )

ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on October 1, 1981, in Naples, Florida.

APPEARANCES

For Petitioner: Michael E. Burns, Esquire

945 Central Avenue

Naples, Florida 33940

For Respondent: Jeffrey A. Miller, Esquire

130 North Monroe Street Tallahassee, Florida 32301

ISSUE PRESENTED

Whether petitioner's application for a real estate salesman's license should be denied on the ground that he fails to meet the requirement that an applicant be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. "

BACKGROUND

By letter dated May 20, 1981, the respondent Board of Real Estate ("Board") notified petitioner that his application for a real estate salesman's license was denied. As grounds, the Board stated that petitioner was not qualified under section 475.17(1) Florida Statutes (1979), which requires applicants to be "honest, truthful, trustworthy, and of good character, and...have a good reputation for fair dealing. "

On May 26, 1981, petitioner requested a formal hearing on the Board's action. On June 17, 1981, this case was referred to the Division of Administrative Hearings. Thereafter, hearing was set for October 1, 1981.

At hearing, petitioner testified on his own behalf and called his sister, Susan K. Kiebler, and his employer, Bill Reagan. Joint Exhibits 1 through 3 were received into evidence. The Board called no witnesses.

The parties were allowed 14 days from the filing of the transcript of hearing to file proposed findings of fact and conclusions of law. It was agreed that the recommended order would be submitted within 30 days from the filing of their proposed findings.

The parties' proposed findings were received by November 5, 1981. Based upon the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. In March, 1981, petitioner filed an application for licensure as a real estate salesman. (Joint Exhibit 1.)

   
   

2. Question No. 6 of the application and petitioner's answer (underlined below) were as follows:

   
   

   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 vio-

   lations), without regard to whether convicted, sentenced, pardoned or paroled? Yes. If yes, state details including the outcome in full:

   
   

   Arrested in Savannah, Georgia 1974 for Sales and Possession of Marijuana--Case Dropped- Beaufort, South Carolina 1974 Simple Posses sion of Marijuana--fined $100.00--1978 following to [sic] close--Sarasota, FL $31.00 fine. (Joint Exhibit 1.)

   
   

3. At hearing, petitioner confirms his answer to Question No. 6. In 1974, he was in the U.S. Marine Corps and stationed at Beaufort, South Carolina. He was arrested twice on criminal charges. On August 14, 1974, he was arrested in Savannah, Georgia, on charges of possession and sale of marijuana. The present state of the charges is uncertain. At hearing, petitioner invoked his Fifth Amendment privilege in response to questions concerning the circumstances surrounding that arrest. His second arrest occurred in Beaufort, South Carolina; on November 7, 1974, he pleaded guilty to the criminal charge of simple possession of marijuana and paid a $100 fine. Other than a subsequent arrest in Port Charlotte, Florida, arising out of a marriage dissolution (the charge of withholding means of support was ultimately dropped) , petitioner has not been arrested or convicted of any crime since 1974. (Testimony of R. Kiebler; Joint Exhibits 2, 3.)

   
   

4. During the last five years, petitioner has been employed by various glass and window companies in southwest Florida. Since February, 1981, he has worked as a salesman for Bill's Custom Glass and Mirror Company in Naples, Florida. In that capacity, he called on contractors, read prints, submitted bids, and signed contracts. He performed his work well; his employer considers him to be a very honest and reliable individual. (Testimony of Reagan, R. Kiebler; Joint Exhibit 1.)

5. Since moving to Naples in February, 1980, petitioner has earned a reputation for truthfulness, honesty, and fair dealing in business affairs. (Testimony of S. Kiebler.)

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s120.57(1), Fla. Stat. (1979).

   
   

7. An applicant for a real estate salesman's license must be "honest, truthful, trustworthy, and of good character and have a good reputation for fair dealing." s475.17(1), Fla. Stat. (1979) . The burden is upon an applicant to show that he meets this standard and is entitled to the license. See, s28-6.08 (3), F.A.C.

   
   

8. It is concluded that petitioner is honest, truthful, trustworthy; that he has good character and a good reputation for fair dealing within the meaning of Section 475.17(1), supra.

   
   

9. He has affirmatively demonstrated rehabilitation. During the seven years which elapsed since his two arrests and one conviction in 1974, he has been a law-abiding and productive citizen. His conviction for simple possession of marijuana did not involve moral turpitude or fraudulent or dishonest dealing. Standing alone, it would not have provided grounds for revoking or suspending his license had he been registered with the Board at the time. See, Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981).

   
   

10. In State ex rel. Corbett v. Churchwell, 215 So.2d 302 (Fla. 1968), an applicant for a real estate license revealed that he had been convicted five years before of a municipal offense. The Florida Supreme Court ruled that:

    
    

    Regardless of its impact as an index to relator's [the applicant's] character at that time, we cannot conclude as a matter of law that it would continue forever to exclude him from the ranks of an honorable profession. Id. at 304.

    
    

11. Petitioner has not been convicted of the charge that he sold and possessed marijuana in Savannah, Georgia, in 1974. A mere arrest does not mean or infer guilt. Neither does petitioner's exercise--at hearing--of his Fifth Amendment privilege. In In Re The Integration Rule of the Florida Bar, 103 So.2d 873, 875 (Fla. 1956), the Florida Supreme Court held:

    
    

    [T]hat claiming the privilege against self incrimination is not a disgrace; it is not to be construed as an inference of guilt or that the one who claims it is addicted to criminal tendencies; it may be claimed by the innocent as well as the guilty-...

12. It would be fundamentally unfair to translate petitioner's exercise of a constitutional privilege into a finding that he lacks the character and honesty required for licensure. By such action, the "privilege would be reduced to a hollow mockery..." Id. at 877. Exercise of the privilege does not mean that one is unfit to practice a profession. See, Cf., In Re The Integration Rule of the Florida Bar, supra at 878.

    
    

13. Old or remote acts of misconduct should not provide a basis for license discipline or denial, if--as in this case--there is "clear evidence that [an applicant's] character has reformed; that there is nothing to warrant he has not afterwards lived a sober, law-abiding life and there appears no evidence of reversion or regression to bad character. In human behavior it is not true that the leopard cannot change his spots." State ex rel. Turner v. Earle, 295 So.2d 609, 622 (Fla. 1974).

    
    

14. State ex rel. Turner, supra, concerned a disciplinary action against a judge for prior misconduct. Standards of conduct and character for judges are no less exacting than those for real estate salesmen. In his dissent, at p. 621, Justice Ervin provided guidance which may assist the Board in this instance:

    
    

    No investigation should be carried backward in time to the point of capricious ridicu lousness. The passage of time and changed environmental or behavioral conditions may have eroded away early acts of misconduct in a judge's life and brought rehabilita tive and redemptive processes to bear, com pletely reforming his character.

    
    

    Shakespeare wrote: "They say best men are molded out of faults. And, for the

    most, become much more the better for being a little bad."

    
    

    The Commission should never be unmer ciful or Draconian. Nor should it take a Pecksniffian or crusading stance... A juvenile crime of a judge, long forgotten in the public mind; a remote crime that a

    judge allegedly committed and for which he was not prosecuted or was acquitted hardly should trouble the Commission years after the fact.

    
    

15. The findings of fact proposed by the parties have been fully considered. To the extent they are incorporated by the above findings, they are adopted; otherwise, they are rejected as unnecessary to resolution of the issues presented or unsupported by the weight of the evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the application of Ronald Leroy Kiebler for a Florida real estate salesman's license be GRANTED.

DONE AND RECOMMENDED this 12th day of November, 1981, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 12th day of November, 1981.

COPIES FURNISHED:

Michael E. Burns, Esquire 945 Central Avenue

Naples, Florida 33940

Jeffrey A. Miller, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Carlos B. Stafford Executive Director Board of Real Estate

400 West Robinson Street Orlando, Florida 32789

Docket for Case No: 81-001632

Orders for Case No: 81-001632