STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELI BERENS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-282

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on March 24, 1982, in Miami, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose from the denial by the Board of Real Estate of the Petitioner's application for licensure as a real estate salesman. Petitioner was denied because of a criminal conviction and his failure to report both his arrests on the application, which reflected adversely on his good character.

APPEARANCES

For Petitioner: Angelo Ali, Esquire

28 West Flagler Street, Suite 400 Miami, Florida 33130

For Respondent: Jeffrey A. Miller, Esquire

Department of Legal Affairs Administrative Law Section The Capitol, 16th Floor Tallahassee, Florida 32301

ISSUE

1. Did Petitioner willfully misrepresent his response to questions on his application regarding his arrests?

   
   

2. Does Petitioner's criminal involvement show a lack of good character, thereby disqualifying him from licensure?

FINDINGS OF FACT

1. Petitioner made application to the Board of Real Estate for licensure as a real estate salesman.

   
   

2. He answered the question, had he ever been arrested, in the affirmative and stated that he had been arrested for possession of stolen property, that adjudication was withheld, and that he was placed on probation which was terminated June 1, 1981.

3. Petitioner had received from another young man a set of sailboat sails, which Petitioner knew or had reason to know were stolen. Petitioner was arrested when he tried to sell the sails to their original owner.

   
   

4. Petitioner did not state in his application that he had also been arrested for possession with intent to sell a controlled substance.

   
   

5. The charges of possession were not pursued, and Petitioner thought the application asked only for convictions. Petitioner subsequently provided details about this arrest in his response to interrogatories filed in this cause.

   
   

6. Petitioner had been arrested for the sale of approximately 400 Quaaludes for $500 to a young man who was a neighbor and an acquaintance.

   
   

7. At the time of his first arrest, Petitioner was 18 years old and was 19 years old at the time of his second arrest.

   
   

8. Currently, Petitioner is enrolled in the School of Business at Florida International University and is a junior with a 2.0 grade average. He is taking a reduced class load to prevent further reduction of his academic average.

   
   

9. Petitioner satisfactorily completed his real estate salesman course and obtained a grade of 90 or better.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction to hear this cause and enter this Recommended Order pursuant to Section 120.57(1), Florida Statutes. The Board of Real Estate is charged in Chapter 475, Florida Statutes, with the regulation and licensure of real estate salesmen.

    
    

11. Petitioner appears to have failed to have fully understood the intent of Question #6 of the application concerning arrests. There is no evidence of his intent to conceal his second arrest.

    
    

12. Section 475.17, Florida Statutes, sets forth the specific requirements for licensure. Section 475.17, supra, provides that an applicant must be of good character, and provides specifically as follows:

    
    

    ... 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 en-

    dangered by the granting of registration.

13. The Petitioner admitted the conduct which formed the bases of both arrests and his conviction for possession of stolen property. Pursuant to Section 475.25(1)(f), Florida Statutes, the Petitioner's conduct would have been grounds for discipline had he been licensed at the time. Therefore, pursuant to Section 475.17(1), Florida Statutes, he is deemed unqualified unless due to the passage of time, etc., it appears to the Board that the public interests would not be endangered.

    
    

14. The past conduct of the Petitioner indicates a lack of mature judgement, which is also indicated by his failure to properly answer Question #6 on his application.

    
    

15. The burden lies with Petitioner not only to demonstrate his general qualifications for licensure but also to show that he has changed his patterns of behavior and conduct to a degree that the public's interest would not be endangered by his licensure. Based upon the record in this matter, Petitioner has not introduced evidence that by the passage of time, subsequent good conduct, and reputation the public interests would be protected.

    
    

16. Respondent submitted proposed findings of fact and conclusions of law. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based on the most credible evidence, or not being a finding of fact.

RECOMMENDATION

The evidence indicates that the Petitioner is deemed statutorily unqualified for licensure, and he has failed to present substantial evidence that by the passage of time, subsequent good conduct and reputation the public's interest would not be endangered by his licensure. Therefore, the Hearing Officer recommends that Petitioner's application be denied at this time without prejudice to any application he might file in the future.

DONE and ORDERED this 27th day of April, 1982, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 27th day of April, 1982.

COPIES FURNISHED:

Angelo Ali, Esquire

28 West Flagler Street, Suite 400

Miami, Florida 33130

Jeffrey A. Miller, Esquire Department of Legal Affairs Administrative Law Section The Capitol, 16th Floor Tallahassee, Florida 32301

C. B. Stafford, Executive Director

Board of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Samuel Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-000282

Orders for Case No: 82-000282