STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARRY ERNST, )

)

Petitioner, )

)

vs. ) Case No. 85-3550

)

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 an administrative hearing in the above-styled cause on January 30, 1986, at Fort Myers, Florida.

APPEARANCES

For Petitioner: Barry Ernst, pro se

304 Casa Bonita No. 1 26000 Hickory Boulevard

Bonita Springs, Florida 33923

For Respondent: Joyous D. Parrish, Esquire

Department of Legal Affairs

400 West Robinson Street, Room 212 Orlando, Florida 32801

By letter dated September 26, 1985, Barry Ernst, Petitioner, requested an administrative hearing to contest the denial of his application to take the examination for real estate salesman. By letter dated October 9, 1985, counsel for the Florida Real Estate Commission advised Petitioner that his application was denied because on his application he indicated he had been arrested for the offense of delivery of drug paraphernalia and placed on five years' probation.

At the hearing Petitioner testified in his own behalf and seven exhibits were admitted into evidence. There is no dispute regarding the facts in this case. Accordingly, all proposed

findings submitted by Respondent are contained in the findings of fact below or were deemed unnecessary to the results reached.

FINDINGS OF FACT

1. On July 3, 1985, Petitioner applied for licensure as a real estate salesman with the Florida Real Estate Commission.

   
   

2. On this application Petitioner responded "yes" to Question 6 of the application form which asked if he had ever been convicted of a crime. The details of the conviction supplied by Petitioner, that he had been convicted of delivery of paraphernalia, adjudication was withheld, he was fined $1,000 and placed on probation for five years, were also accurate.

   
   

3. At the time of his arrest Petitioner and his brother were partners in a record store. For sale in this store was a milk sugar known as Mannitol. Unbeknownst to Petitioner prior to his arrest, Mannitol is a controlled substance. Drug paraphernalia, the delivery of which Petitioner was arrested and brought to trial, was this Mannitol that was in the record store for sale.

   
   

4. At his trial on March 18, 1985, Petitioner pleaded guilty to the charge against him, adjudication of guilt was withheld, he was fined $1,000 which he has paid, and he was placed on probation for five years. This is the only time Petitioner has ever been arrested. He has fully complied with all terms of his parole and his probation officer will recommend an early termination of his parole in March 1987 (Exhibit 6).

   
   

5. Subsequent to his trial Petitioner has sold his interest in the record store and disassociated himself from any business dealings with his brother. He is currently employed as a planning technician with the Lee County Zoning Department.

   
   

6. Petitioner is 34 years old, has been married for five years, and is the father of a 2-1/2 year old son. He has owned a residence in Lee County for 10 years. References submitted by Petitioner to the effect that Petitioner was honest and trustworthy were submitted by individuals who were aware of his arrest and trial.

   
   

7. This one arrest for delivering a substance that Petitioner was not even aware was illegal does not establish that Petitioner is not honest, truthful, trustworthy, and of good character. To the contrary, from the evidence presented at the hearing, Petitioner has those qualities necessary for licensure as a real estate salesman.

   
   

   CONCLUSIONS OF LAW

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

   
   

9. Section 475.17(1), Florida Statutes, provides in pertinent part:

   
   

   1. An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a reputation for fair dealing.

      
      

      * * *

      
      

      If the applicant has been denied registration

      . . . or 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 qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reasons deemed sufficient, it appears to the commission that the interests of the public and investors will not likely be endangered by the granting of registration.

      
      

10. The offense for which Petitioner was tried and placed on probation is not a crime involving moral turpitude. Pearl v. Florida Board of Real Estate, 349 So. 2d 189 (Fla. 3d DCA 1981). This is particularly true since the act for which Petitioner was tried was one he was unaware was illegal. Further, that offense is malum prohibitum, not malum in se.

    
    

11. From the foregoing it is concluded that Petitioner is honest, truthful, trustworthy, and of good character and has a good reputation for fair dealing. It is

RECOMMENDED that Petitioner's application to take the Florida Real Estate examination for salesman be approved.

ENTERED this 21st day of February, 1986, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1986.

COPIES FURNISHED:

Barry Ernst

304 Casa Bonita No. 1

26000 Hickory Boulevard, S.W. Bonita Springs, Florida 33923

Salvatore A. Carpino, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Joyous D. Parrish, Esquire Department of Legal Affairs

400 West Robinson Street, Room 212 Orlando, Florida 33801

Harold Huff, Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Fred M. Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 85-003550

Orders for Case No: 85-003550