STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARK BRUCK, )

)

Petitioner, )

)

vs. ) CASE NO. 82-066

)

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, WILLIAM B. THOMAS, held a formal hearing in this case on March 3, 1982, in Fort Lauderdale, Florida. The parties did not waive their right to submit proposed findings of fact and conclusions of law, and they were allowed ten days after the filing of the transcript to do so. In return, the parties agreed to an extension of the 30 day time period for the issuance of this Recommended Order, so as to be due 30 days after the date proposed findings are timely submitted. The transcript was filed on March 22, 1982, but to date no proposed findings have been received.

APPEARANCES

For Petitioner: Mark Bruck, in pro per

11101 Royal Palm Boulevard Coral Springs, Florida 33065

For Respondent: Jeffrey A. Miller, Esquire

Assistant Attorney General The Capitol, Room 1601 Tallahassee, Florida 32301

ISSUE

The Petitioner's application for licensure as a real estate salesman was denied by the Board of Real Estate. By letter dated December 17, 1981, the Petitioner was advised that the Board's decision was based on the Petitioner's disclosure in his application that he had been arrested for a criminal offense, and his criminal record according to appropriate law enforcement agencies. The Petitioner challenged this decision of the Board by requesting an administrative hearing.

The issue to be determined is whether the Petitioner meets the eligibility requirements for licensure as a real estate salesman. The Petitioner testified in his own be half and presented three other witnesses in support of his contention that he meets all eligibility requirements. These witnesses were the Petitioner's mother who is a licensed real estate broker, and two local businessmen who know the Petitioner, his work record, and his reputation in the

community. The Board of Real Estate did not present any witnesses, but did offer in evidence the Petitioner's application and related papers, together with its denial letter, as a composite exhibit.

FINDINGS OF FACT

1. The Petitioner, Mark Bruck, is 20 years of age. In 1980, when he was 18, he was arrested and charged with grand theft auto and robbery. The Petitioner had been drinking with another boy. They went to an abandoned area in a van belonging to a third boy, took the van, and left the owner of the van there. As a result of this single occurrence, the Petitioner and his friend were arrested, and the Petitioner was charged with grand theft auto and robbery. The robbery charge was added to cover the articles of personal property inside the van that were taken with the van. The Petitioner's friend was permitted to enlist in the Marine Corps, and was not charged.

   
   

2. The van was returned to its owner, and the Petitioner was permitted to enter a pretrial intervention program own condition that full restitution be made for the personal property and damage to the van. The Petitioner and his friend each paid approximately $1,700 in full restitution for the van and its contents. The Petitioner remained on this pretrial intervention program for a period of 18 months.

   
   

3. Subsequently, the Petitioner was out with some other friends who stopped at a construction site and took several pieces of two-by-four lumber. Although the Petitioner did not leave the vehicle, and was not engaged in taking the lumber, he was arrested along with his friends for petty theft. Because of the intercession of his counsellor in the pretrial intervention program, the Petitioner was not charged with anything as a result of this incident.

   
   

4. Previously, before he was 18 years old, the Petitioner had been charged with driving while intoxicated. However, on his application and in his answers to interrogatories propounded by counsel for the Board, the Petitioner only disclosed the one arrest for grand theft auto. The Petitioner explains this by stating that he actually had no recollection of the petty theft charge when answering the interrogatories and completing the application, and that he did not feel that the DWI charge was relevant. Based upon the observed candor and demeanor of the Petitioner, and the absence of any contradictory evidence, it is found as a fact that the Petitioner made as complete a disclosure of his arrest record as his recollection permitted without the advice of counsel.

   
   

5. The Petitioner's completion of the pretrial intervention program removed him from the jurisdiction of the court for the grand theft auto charge and for the robbery charge. In approximately the year 1983 the Petitioner may petition the court to seal the record of these offenses. Now the Petitioner seeks to become licensed to sell real estate, and work in his mothers realty office.

   
   

6. He has lived in Florida for all of his life. He has been working as a painter, then as a painting contractor, for approximately the past two years. In this work he receives money deposits from customers on jobs that are not yet begun, or are begun and not yet finished, and there has been no difficulty or dispute with his customers concerning these deposits. The Petitioner has been extended credit for sums up to $2,000, and he has a good reputation in the community. Two local businessmen, as a sample, would not hesitate to entrust funds to the Petitioner in connection with real estate purchases.

7. Finally, with reference to his knowledge and capability to engage in real estate sales, the Petitioner achieved a score of 97 on the licensure examination. Presently, the Petitioner has matured and has a different outlook on life than he had in the past.

   
   

   CONCLUSIONS OF LAW

   
   

8. Sections 475.17, Florida Statutes, prescribes the requirements for licensure as a real estate salesman. An applicant must be 18 years of age, a bona fide resident of Florida, and he must be "honest, truthful, trustworthy, of good character, and have a good reputation for fair dealing", and demonstrate competence to make real estate transactions and conduct negotiations with safety to investors, and those with whom he may undertake a relationship of trust and confidence. The only question raided by the Board in its denial letter related to the Petitioner's character and reputation, and his honesty, veracity, and trustworthiness, as a result of his arrest record.

   
   

9. In addition, Section 475.25(1), Florida Statutes, permits the Board to deny licensure for violations of Sections 475.42 and 455.227(1), Florida Statutes, relating to misrepresentation and conviction of a felony relating to the practice of his profession. Since the Petitioner was found not to have misrepresented his arrest record, and he has not been convicted of a felony, these statutory provisions are not applicable.

In all other respects the Petitioner has presented substantial, competent evidence to demonstrate his honesty, truthfulness, trustworthiness, good character, and good reputation for fair dealing. There is no evidence from which a conclusion to the contrary can be made. Thus, the Petitioner meets the eligibility requirements for licensure as a real estate salesman.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Real Estate grant the application of Mark

Bruck for a real estate salesman's license.

THIS RECOMMENDED ORDER entered on this 16th day of April, 1982.

WILLIAM B. THOMAS, 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 16th day of April, 1982.

COPIES FURNISHED:

Mark Bruck, in pro per 11101 Royal Palm Boulevard

Coral Springs, Florida 33065

Jeffrey A. Miller, Esquire Assistant Attorney General The Capitol, Room 1601 Tallahassee, Florida 32301

Frederick H. Wilsen, Esquire Assistant General Counsel

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shornstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Carlos B. Stafford Executive Director

Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Docket for Case No: 82-000066

Orders for Case No: 82-000066