STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIMMIE LEE BLACKMON, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1940

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, conducted a formal hearing in this case on August 29, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jimmie Lee Blackmon, pro se

Post Office Box 264

West Palm Beach, Florida 33402

For Respondent: Lawrence S. Gendzier, Esquire

Department of Legal Affairs

Suite 212, 400 West Robinson Street

Orlando, Florida 32801

ISSUE

Whether petitioner's application for licensure as a real estate salesman should be denied because of his alleged criminal record and his false denial (on his application) that he has ever been arrested for or charged with the commission of a crime.

BACKGROUND

Respondent Department of Professional Regulation, Florida Real Estate Commission ("Department") seeks to deny petitioner Jimmie Lee Blackmon's ("petitioner") application for licensure as a real estate salesman because of his alleged criminal record and false denial, on his application, that he has ever been arrested for or charged with a crime.

Petitioner requested a hearing to challenge the Department's proposed denial. On June 14, 1983, this case was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct the requested hearing.

At hearing, petitioner testified on his own behalf; the Department presented no witnesses. Petitioner's Exhibit Nos. 1-2 and respondent's Exhibit Nos. 1-3 and 5 were received into evidence. 1/

The transcript of hearing was filed on September 12, 1983; the Department filed proposed findings of fact by September 14, 1983.

Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT

1. On May 17, 1982, petitioner filed an application for licensure as a real estate salesman with the Florida Real Estate Commission. (R-2)

   
   

2. Question number six on his application reads:

   
   

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

   convicted, sentenced, pardoned or paroled? If yes, state details including the out- come in full.

   
   

   He falsely answered this question, "No." (R-2)

   
   

3. On February 7, 1976, he was arrested in West Palm Beach for carrying a concealed weapon, a .38 caliber revolver. (TR.-15)

   
   

4. On November 2, 1974, he was arrested for driving while under the influence of alcohol in West Palm Beach. He pled guilty to the charge and adjudication was withheld. (TR.-l6)

   
   

5. On March 3, 1973, he was arrested in West Palm Beach for driving while under the influence of alcohol and was later convicted. (TR.-16-17)

   
   

6. On June 25, 1965, he was arrested in Palm Beach County for violating his probation. (TR.-l8)

   
   

7. In December, 1964, he was arrested in Palm Beach County on charges of breaking and entering a dwelling house with intent to commit a misdemeanor, indecent exposure and malicious trespass. He pled guilty to malicious trespass; the breaking and entering and indecent exposure charges were dropped. (R-5)

   
   

8. On December 26, 1962, he was arrested in Palm Beach County on a robbery charge. He was later convicted of accessory after the fact and sentenced to three years in Florida State Prison. (TR.-19-20)

   
   

9. On May 3, 1962, he was arrested for and convicted of drunkenness in West Palm Beach. (Tr.-21)

10. On December 14, 1960, he was arrested in West Palm Beach and charged with resisting a police officer, traffic violations and drunkenness. He was later convicted of these charges. (TR.-21-22)

    
    

11. His civil rights, automatically suspended when he was convicted of a felony, have been restored and he is now able to vote in Florida. (Testimony of petitioner)

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 120.57(1), Fla. Stat. (1981).

    
    

13. In Section 120.57(1) proceedings, applicants for licenses have the burden of proving their entitlement to the license in question, see, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981)

    
    

14. Section 475.17(1), Florida Statutes (1981) requires applicants for real estate licenses to be "honest, truthful, trustworthy, and of good character

    . . . ."

    
    

15. An applicant's criminal record does not, by itself, disqualify him from licensure. Section 112.011(1)(b) provides that a person whose civil rights have been restored may not be disqualified from obtaining a professional licensure solely because of his prior conviction of a crime.

    
    

16. In the instant case, petitioner has not sustained his burden of proof. He has failed to convincingly demonstrate that he meets the standards of honesty, trustworthiness, truthfulness, and character required for licensure as a real estate salesman. Section 475.l7(1), Fla. Stat. (1981). This conclusion is based not on his prior arrests and convictions, most of which occurred many years ago, but on his willingness to give a false and misleading answer to a clear and unambiguous question on his application for licensure. Although he explained the reasons for his incorrect answer, that explanation is implausible and unworthy of belief. 2/

    
    

17. The Department's proposed recommended order, containing findings of fact, has been considered in preparing this recommended order. To the extent the Department's proposed findings of fact were consistent with the weight of the credible evidence adduced at hearing, they have been adopted and are reflected in this recommended order. To the extent the proposed findings were not consistent with the weight of credible evidence, they have been either rejected, or when possible, modified to conform to the evidence. Additionally, proposed findings which are subordinate, cumulative, immaterial, or unnecessary, have not been adopted.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That petitioner's application for licensure be denied for failure to show that, at this time, he possesses the honesty, truthfulness, trustworthiness, and

good character required by Section 475.17(1). However, this denial should not prejudice his right to reapply in the future.

DONE and ENTERED this 23rd day of September, 1983, 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 23rd day of September, 1983.

ENDNOTES

1/ Petitioner's Exhibits will be referred to as "P- "; respondent's as "R- ." Pages in the transcript of hearing will be referred to as "TR- ."

2/ MR. CALEEN: "Now, can you go over again for me why you

said, 'No,' . . .?"

MR. BLACKMON: "Okay. I have been out of prison for fifteen years and I got my voting rights back so I didn't think anything different. Since I got my voting rights back I went ahead and answered no. Because I am now working for the State of Florida."

COPIES FURNISHED:

Jimmie Lee Blackmon

P. O. Box 264

West Palm Beach, Florida 33402

Lawrence S. Gendzier, Esquire Department of Legal Affairs

Suite 212, 400 W. Robinson Street

Orlando, Florida 32801

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Department of Professional Regulation

Division of Real Estate

P. O. Box 1900

Orlando, Florida 32802

William M. Furlow, Esquire Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 83-001940

Orders for Case No: 83-001940