Grubbs, a hearing officer of the Division of Administrative Hearings.
Whether the petitioner meets the qualifications for licensure as a real estate salesman.
By letter dated September 24, 1984, and subsequent letter filed October 31, 1984, petitioner was notified that the Florida Real Estate Commission had denied his application for licensure. On October 28, 1984, the petitioner requested a formal hearings and the matter was referred to the Division of Administrative Hearings for further proceedings.
At the hearing the parties entered into evidence two joint exhibits. The petitioner presented the testimony of two witnesses, Mr. Vince Alexander and Ms. Linda Anderson, and testified in his own behalf. The petitioner also entered into evidence one composite exhibit, numbered P.Ex.1(a)-1(i).
The parties were given ten (10) days after the filing of the transcript to file proposed findings of fact and conclusions of law. The petitioner filed a three paragraph letter on July 31, 1985, which is treated as his proposed
findings of fact and proposed conclusions of law. The respondent did not file a proposed recommended order. A ruling on each of the three paragraphs in petitioner's letter has been made in the Appendix to this recommended order.
On July 6, 1984, the petitioner filed an application for licensure as a real estate salesman with the Department of Professional Regulations Division of Real Estate.
The petitioner responded in the affirmative to question 6, which asked whether the applicant had "ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere. . .", and set forth the details as follows:
"Attempted Possession of Stolen Property" (New York) Bronx
Date of Probation May 29, 1984
Date of Conviction November 16, 1983 Probation Officer Ms. English 212-590-3101
By letter dated September 24, 1984, and undated letter filed October 31, 1984, the petitioner was informed that the Commission had denied his application for licensure. In pertinent part the letter stated as follows.
"The power of the Commission to review
and deny applications is based upon Sections
475.17 and 475.25, Florida Statutes. Subsection 475.17(1) calls for the applicant to be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing. . ."
The reason for the Commission's action
is based on your answer to Question(s) 6 of the licensing application and/or your criminal record according to the appropriate law enforcement agency.
The petitioner owned a secondhand jewelry business in New York, similar to a pawn shop. He dealt with people all over the world, mainly wealthy people, and they sold him antiques and jewelry. He informed anyone coming in his store that he did not buy stolen goods and had a sign on his wall so stating. One gentleman, that had been a client for approximately three years, came into the store about every six or seven months to sell something. The last time this individual came into the store, about four weeks before the petitioner closed his business and moved to Florida, the individual implied that the gold he was selling might not belong to him. However, petitioner wasn't paying particular attention at that time to what the individual was saying since the petitioner had had previous dealings with him.
After moving to Florida, in February of 1983, Petitioner was notified that he had been indicted in Bronx, New York. He flew back to New York and turned himself into the authorities. He discovered that the gentleman with whom
he had been dealing for three years was a New York police officer and that their conversations had been taped. The tape revealed that during the last transaction the officer had implied that the gold he was selling did not belong to him.
Petitioner pleaded guilty to attempted possession of stolen property, a felony, and was placed on probation for five years beginning in December, 1983. Petitioner has had a very good record while on probation.
The petitioner held a real estate license in New York for over 10 years which has now expired. The license was never suspended or revoked and petitioner never had any other type of problem while in the real estate business. Since petitioner has been in Florida he has held responsible jobs handling large amounts of money. His employers, friends and coworkers have been impressed with his reliability, integrity and honesty.
Petitioner presented sufficient evidence to show that since living in Florida he has been honest, truthful, trustworthy, of good character, and has a good reputation for fair dealing. Nevertheless, respondent pleaded guilty to the crime of attempted possession of stolen property and is still on probation for that crime. Although an isolated unlawful act or criminal conviction in the past does not necessarily mean that an individual is presently dishonest, untrustworthy or of bad character, 1/ it must be concluded that when an individual is presently on probation for a crime involving dishonest dealing, the unlawful act or conviction is not so remote that it can be deemed an isolated incident in the past.
Because Petitioner is still on probation for a crime that involves dishonesty and a lack of trustworthiness, petitioner has not established that he meets the requirements of Section 474.17(1)(a), Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1) Florida Statutes (1983).
Section 475.17(1), Florida Statutes states; "An applicant for licensure who is a
natural person shall be . . . honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing.
The section further provides:
"[I]f 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 appears to the Commission
that the interest of the public and investors will not likely be endangered by the granting of registration.
Under section 475.25(1)(f), Florida Statutes, conviction of a crime involving moral turpitude or fraudulent or dishonest dealing constitutes grounds for revoking or suspending a license.
From the above provisions, it is apparent that an applicant cannot be considered "honest, truthful, trustworthy, and of good character [with] a reputation for fair dealing" if the applicant has been convicted of a crime involving dishonest dealing and the interval between conviction and application is insufficient to establish subsequent good conduct and reputation. The length of time required to establish subsequent good conduct and reputation will vary from case to case and will depend on a variety of factors, such as the nature of the crime committed, the circumstances under which it was committed, the age of the individual at the time of commission, and the individual's prior conduct, among others. However, the very word "probation 2/ suggests that until an individual has successfully completed his probationary periods or at least a substantial portion of the probationary term, a sufficient length of time has not elapsed.
In this case, the petitioner had completed approximately one-and-a- half years of his five-year probationary term at the time of the hearing. There was no evidence presented which indicated that the length of the probationary term was unjustified. Further, petitioner testified that upon continued good conduct his probationary period would be shortened. Upon consideration of all the evidence, it must be concluded that until petitioner's probation is terminated he cannot be considered a qualified applicant under section 475.17(1)(a), Florida Statutes.
