STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH GORDON PATERSON, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1159

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 11, 1982 at Clearwater, Florida.

APPEARANCES

For Petitioner: Kenneth Gordon Paterson, pro se

120 Ferndale Lane Springhill, Florida 33526

For Respondent: Ralph Armstead, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

By letter dated April 5, 1982, Kenneth Gordon Paterson, Petitioner, requested a hearing on Respondent's Notice of Denial letter dated March 29, 1982 of Petitioner's application for licensure as a real estate salesman. Grounds for the denial are alleged to be based on Sections 475.17 and 475.25, Florida Statutes in that Petitioner was not found to be "honest, truthful, trustworthy and of good character and shall have a good reputation for fair dealing," based upon Petitioner's answer to question 6 on the application. At the hearing Petitioner called two witnesses, including himself; and eight exhibits were admitted into evidence. Respondent's objections to Exhibits 1 through 7 on grounds of hearsay and relevance were overruled. However, these exhibits were admitted only to corroborate admissible evidence.

FINDINGS OF FACT

1. In his application for licensure as a real estate salesman dated January 19, 1982, Petitioner answered question 6 inquiring about previous arrests "yes" and for details wrote "see attached page."

   
   

2. On the attached page Petitioner noted to see attached copy of his past driving record. That record shows four traffic violations in 1975, two in 1976 and one in 1977. Only one of these violations resulted from an accident and in

   this accident there were no injuries. None of these violations were for DWI. On April 1, 1975 Petitioner became 17 years old.

   
   

3. On the attached page Petitioner also wrote in answer to question 6:

   
   

   In 1976 applicant was charged with breaking and entering after turning himself in to the police upon advice of the naval recruiting officer. Was

   exonerated of charge upon entering U.S. Navy soon thereafter.

   
   

   In 1977 applicant was charged with possession of marijuana. Sentenced to six months probation. After successfully completing said proba- tion charges were removed from ap- plicant's record.

   
   

   In checking police files in Ottowa County, no record of these charges will be found. I hope my honesty in this matter will be taken into

   consideration. NOTE: Both criminal violations mentioned occurred in Holland, Michigan, Ottowa County.

   
   

4. The breaking and entering charges were dropped and Petitioner was never tried on those charges. The check made by Respondent through the Florida Department of Law Enforcement revealed no criminal record for Petitioner. This is corroborated by Exhibit 1.

   
   

5. In 1977 when Petitioner was found guilty of possession of marijuana at the age of 19, it appears that adjudication of guilt was withheld and upon successful completion of six months' probation this offense was expunged from the record. This offense did not show up on the FBI fingerprint search conducted on this application. This too is corroborated by Exhibit 1. Possession of a small amount of marijuana is a misdemeanor.

   
   

6. Petitioner has had no arrests for any offense, including traffic offenses, in the past four years (since he was 20 years old). His reputation for truth and veracity is good and he can be trusted in a business transaction.

   
   

7. On the witness stand Petitioner presented a forthright demeanor and fully answered all questions. He applied for a job as an account executive with

   A. G. Edwards & Sons and after completing the battery of tests and the interview with the Vice President and Branch Manager of the New Port Richey office, the latter deemed Petitioner qualified. Exhibit 2 corroborates Petitioner's testimony in this regard. If the brokerage business picks up Petitioner expects to be employed in the A. G. Edwards office in February, 1983.

   
   

8. While working as a correctional officer at Pasco County Correction Center, Petitioner was promoted temporarily to assist shift supervisor and was recommended for permanent promotion to shift supervisor. (Petitioner's testimony corroborated by Exhibit 4.)

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

10. Section 425.17, Florida Statutes, provides in pertinent part that an applicant for licensure as a real estate salesman shall be "honest, truthful, trustworthy, and of good character and shall have a good reputation for fairdealing." The only evidence Respondent had of Petitioner's prior record of arrests was from Petitioner on his application. This obviates any possible finding based on the evidence presented that Petitioner is not honest and truthful.

    
    

11. It should be noted that the reported arrest for breaking and entering never resulted in charges being filed against Petitioner, and no record of this reported transgression is extant. The offense of possession of marijuana is a misdemeanor and is not an offense involving moral turpitude. Pearl v. Florida Board of Real Estate, 349 So.2d 189 (Fla. 3rd DCA 1981). Nor is it an offense, any more than are minor traffic violations, which goes to Petitioner's trustworthiness and reputation for fair dealing.

    
    

12. In his closing argument the attorney for Respondent suggested Section 475.25(f), Florida Statutes, may also form a basis for disqualification of Petitioner. That section provides disciplinary action may be taken against a licensee who has been found guilty of a crime directly relating to the activities of a licensed broker or salesman or involves moral turpitude, or fraudulent or dishonest dealing. Here Petitioner was not found guilty of any crime directly related to the activities of a real estate broker or salesman or which involve moral turpitude or dishonest dealing. Based solely upon Petitioner's forthright answer to question 6 it may be assumed that he was found guilty of possession of marijuana, an offense not related to the activities of a real estate broker or salesman, nor one involving moral turpitude.

    
    

13. From the foregoing it is concluded that Petitioner is honest, truthful, trustworthy, and of good character and he has a reputation for fair dealing. But for Petitioner listing the 1976 and 1977 crimes on his application, their existence would not have been discovered. The honesty and truthfulness involved in including this information on Petitioner's application belies the allegation that Petitioner is not qualified by reason of honesty and truthfulness. It is therefore

RECOMMENDED that Petitioner's application to take the examination for real estate salesman be approved.

ENTERED this 3rd day of September, 1982, in Tallahassee, Florida.

K. N. AYERS 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 3rd day of September, 1982.

COPIES FURNISHED:

Kenneth Gordon Paterson

120 Ferndale Lane Springhill, Florida 33526

Ralph Armstead, Esquire Department of Legal Affairs Suite 212

400 West Robinson Street Orlando, Florida 32801

Mr. C. B. Stafford Executive Director

Florida Real Estate Commission

P. O. Box 1900

Orlando, Florida 32801

Fred Wilsen, Esquire Department of Professional Regulation, Legal Services

400 W. Robinson Street

P. O. Box 1900

Orlando, Florida 32801

Samuel R. Shorstein, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001159

Orders for Case No: 82-001159