STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS MICHAEL BURLESON, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2914

)

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on November 15, 1983. The Division of Administrative Hearings received a transcript of proceedings on November 21, 1983. At hearing, petitioner appeared pro se. Respondent appeared through counsel:

Lawrence S. Gendzier, Esquire Assistant Attorney General

Room 212, 400 West Robinson Street

Orlando, Florida 32801

After petitioner applied for licensure as a real estate salesman, Randy Schwartz, an assistant attorney general, wrote him, on behalf of the Florida Real Estate Commission, that the Commission proposed to deny the application, citing the allegedly false answer to question six on the application form he had submitted and/or his alleged criminal record, and Sections 475.17 and 475.25, Florida Statutes. Mr. Schwartz' letter of May 20, 1983, states:

Section 475.17(1) calls for applicant to be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. . .

Respondent's Exhibit No. 11.

Mr. Schwartz wrote petitioner a virtually identical letter on August 18, 1983, presumably in response to the second application for licensure petitioner testified he filed. By letter dated September 2, 1983, counsel for the Florida Real Estate Commission refused petitioner's request for a hearing and referred the matter to the Division of Administrative Hearings, pursuant to Section 120.57, Florida Statutes (1981).

FINDINGS OF FACT

1. According to petitioner's uncontroverted testimony, he signed the notarized application for licensure as a real estate salesman, dated March 30,

   1983, and gave the otherwise blank form, along with a separate piece of paper on which he had written answers to questions appearing on the form, to an employee of a real estate school he attended. The form was to be completed and mailed without his seeing it again; this was customary, he explained. On the separate piece of paper, he wrote answers to every question but number six, which asks:

   
   

   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 violations), without regard to whether convicted, sentenced, pardoned, or paroled?

   
   

   Respondent's Exhibit No. 10.

   
   

   An anonymous typist supplied the word "no," and typed "NA" in the blank following the instructions, "If yes, state details including the outcome in full." Respondent's Exhibit No. 10.

   
   

2. In fact, petitioner was arrested on January 29, 1971, and subsequently convicted for failure to appear in court on traffic charges in Pensacola. On October 28, 1976, petitioner was arrested on bad check charges. He pleaded guilty and was convicted on two counts on November 12, 1976. Respondent's Exhibit No. 1. On January 10, 1977, petitioner was convicted of seven additional counts of "worthless checks." Respondent's Exhibit No. 2. Later the same month, also in Pensacola, he was adjudicated guilty of another such offense. Respondent's Exhibit No. 3.

   
   

3. Petitioner's next brush with the law was his apprehension and, in Pensacola, on May 11, 1978, conviction for indecent exposure. Respondent's Exhibit No. 4.

   
   

4. On October 10, 1978, petitioner failed to appear for a trial scheduled on still another bad check charge. As a result, he was adjudicated guilty of contempt of the County Court of Escambia County. Respondent's Exhibit No. 5. At the hearing in the present proceedings, he first testified that he had not been adjudicated guilty of this charge, then said that this conviction was reversed on appeal. In giving this second version of events, petitioner recounted a highly improbable appellate hearing. He described in detail being present at oral argument on the appeal before a panel of three circuit judges, whom he named, and reported that his lawyer argued for reversal against the county judge who appeared in person to argue for affirmance of the contempt conviction.

   
   

5. On April 9, 1979, petitioner was convicted of five counts of making and utilizing forged instruments. Respondent's Exhibit No. 7. These instruments purported to be checks drawn on his grandmother's account. Probation imposed on account of earlier charges was revoked at the same time. In addition, he was adjudicated guilty of writing numerous bad checks. Respondent's Exhibit 9. On this as on other occasions, he spent time in jail. He never spent more than four months in jail at one stretch, however. He was convicted in Pensacola on May 20, 1981, of writing two more checks against insufficient funds, each for

   $500.

   
   

6. Petitioner claimed to be current on his child support payments and testified that he thinks he is honest and honorable. Before counsel for

   respondent produced the court records at hearing, petitioner, while under oath, misrepresented his criminal record in various respects. Petitioner's civil rights, except for the right to bear arms, were restored administratively on September 23, 1982.

   
   

7. The second time he applied for licensure as a real estate salesman, petitioner answered question six more candidly.

   
   

8. Both parties made posthearing submissions. Proposed findings of fact have been considered and adopted, in substance, for the most part. Proposed fact findings have been rejected where unsupported by the evidence, immaterial, subordinate or cumulative.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 475.17(1), Florida Statutes (1981), requires that an "applicant for licensure. . .be. . .honest, truthful, trustworthy, and of good character and. . .have a good reputation for fair dealing." In addition, the statute prohibits licensure as a real estate salesman where an applicant "has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license. . .had the applicant then been registered. . .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 endangered by the granting of registration." Section 475.17(1), Florida Statutes (1981). One ground for suspending or revoking a real estate license is the licensee's being "found guilty. . .of a crime. . .which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing." Section 475.25(1)(f), Florida Statutes (1981).

   
   

10. When a licensing agency like respondent has "set forth in writing the grounds or basis for [proposed] denial of a license," Rule 28-6.08(2), Florida Administrative Code; see Section 120.60(2), Florida Statutes (1979), "unless otherwise provided by law the applicant shall have the burden of establishing entitlement," Rule 28-6.09(3), Florida Administrative Code, by "establish[ing] the invalidity of the grounds or basis asserted by the licensing agency as the reason for denial." G. Pfeiffer and R. Benton, Administrative Adjudication, in Florida Administrative practice, 4.16, at 158 (2d Ed. 1981). See Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage, 347 So.2d 1102 (Fla. 1st DCA 1977)(lack of good moral character found "from evidence submitted by the applicant" at 1103); see generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner did not meet his burden in the present case.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent deny petitioner's application for licensure as a real estate salesman.

DONE and ENTERED this 8th day of December, 1983, in Tallahassee, Florida.

ROBERT T. BENTON II

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 8th day of December, 1983.

COPIES FURNISHED:

Lawrence S. Gendzier, Esquire Assistant Attorney General

Room 212, 400 West Robinson Street

Orlando, Florida 32801

Douglas Michael Burleson Post Office Box 18045 Pensacola, Florida 32523

Randy Schwartz

Assistant Attorney General Department of Legal Affairs Suite 212

400 West Robinson Street Orlando, Florida 32801

Fred M. Roche, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Division of Real Estate

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 83-002914

Orders for Case No: 83-002914