STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELLYN SCHECHTER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-1421

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on October 10, 1986 in Ft. Lauderdale, Florida.

APPEARANCES

FOR PETITIONER: Ida M. Lawry, Esquire

621 South Federal Highway, Suite 4 Ft. Lauderdale, Florida 33301

FOR RESPONDENT: Lawrence S. Gendzier, Esquire

400 West Robinson Street, Suite 212 Orlando, Florida 32801

BACKGROUND

On an undisclosed date, respondent, Department of Professional Regulation, Division of Real Estate, informed petitioner, Ellyn Schechter, that her application for licensure as a real estate salesman by examination had been denied. Thereafter, petitioner requested a formal hearing on April 7, 1986 to contest the agency's decision. On April 23, 1986, respondent formalized its earlier decision and issued proposed agency action in the form of a letter advising petitioner that her application had been denied because of petitioner's criminal record. According to the letter, petitioner did not meet the requirements of Subsections 475.17 and 475.25, Florida Statutes (1985). The matter was forwarded by respondent to the Division of Administrative Hearings on April 28, 1286, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated June 2, 1986, a final hearing was scheduled for July 1, 1986 in Fort Lauderdale, Florida. The matter was continued on several occasions and was eventually heard on October 10, 1986 at the same location.

At final hearing, petitioner testified on her own behalf and presented the testimony of her employer, George Kirikopoulos. She also offered petitioner's exhibits 1-3 which were received into evidence. Respondent offered respondent's exhibits 1-5. All were received into evidence.

The transcript of hearing was filed on October 30, 1986. Respondent filed proposed findings of fact and conclusions of law on November 6, 1986. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

The issue is whether petitioner meets the qualifications for licensure as a real estate salesman by examination.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Ellyn Schechter, who is thirty-two years of age, made application on October 14, 1985 for licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division).

   
   

2. Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld". Petitioner gave the following response:

   
   

   "Yes, resist arrest w/o violence, possession cocaine." Applicant's attorney provided letter and documents attached, FDLE report lists an arrest 6-30-84 possess cocaine, narcotic equipment, tuinal (drug) - no dis- position. According to documents furnished, resisting arrest charges resulted in 1 yrs. probation effective July 10, 1984, fines and "community service hours; arrest reference drugs - withheld adj., 2 years community control, 1 year probation effective

   Nov. 9, 1984, 6 special conditions, concurrent.

   
   

   A background check by the Division revealed that Schechter was arrested and charged with three counts of resisting arrest without violence in Broward County in 1984. After pleading guilty to all three counts, the court withheld adjudication and placed Schechter on probation for one year. In addition, petitioner was also arrested and charged in Broward County in 1984 with possession of cocaine, possession of a barbiturate, and possession of drug paraphernalia . She pled guilty to the first and second charges. The third charge was dismissed. The court withheld adjudication, and sentenced petitioner to two years community control followed by one year of probation, 100 hours community service, drug evaluation and/or treatment as deemed appropriate,

   $1,000 court costs, and a requirement that she abstain from alcohol and drugs for three years. She satisfactorily completed her probation and community control in January, 1986. There is no evidence of any arrests or other problems since 1984.

   
   

3. Schechter is a licensed dental hygienist and holds licenses to practice that profession in both Florida and New York. Due to a hand injury, she is no longer able to pursue that vocation. She desires to be licensed as a real estate salesman, and successfully completed the pre-examination course in October, 1985 with a score of 96. She was also offered a job at that time with

   Century 21 Rainbow Realty, Inc. in Plantation, Florida. At the present time, she is working as a waitress in a Fort Lauderdale area restaurant. Her employer described her as being honest, courteous and dependable, and stated that she handled his money in a responsible manner. Schechter also furnished letters from four former employers to corroborate the testimony concerning her honesty and trustworthiness. However, they all predate her 1984 convictions.

   
   

4. Schechter freely acknowledged her prior difficulties, and was candid and forthright in answering all questions about her arrests. She stated the arrest for drugs stemmed from a passenger in her automobile having drugs in his possession. The charge of resisting arrest without violence occurred after Schechter was arrested in her home by two City of Hollywood police officers. They had apparently responded to a disturbance involving Schechter and a female guest. According to Schechter, the arrest was unjustified, and resulted in her receiving a beating from one of the officers which caused her to be hospitalized for four days.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

6. Subsection 475.17(1)(a), F.S. (1985) provides in relevant part as follows:

   
   

   (1)(a) 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 charac- ter and shall have a good reputation for fair dealing. An applicant for an active broker's license or a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to in- vestors and to those with whom he may un- dertake a relationship of trust and con- fidence . . . 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 to be qualified unless, because of lapse of

   time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the com- mission that the interest of the public and investors will not likely be endangered by the granting of registration.

   
   

   Under the foregoing statute, an applicant for licensure must be "honest, truthful, trustworthy, and of good character and shall have a reputation for fair dealing." Further, if the applicant has committed an act which would be

   grounds for disciplining her license if she had been registered, there must be a "lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient" in order to be eligible for licensure. In other words, the applicant must affirmatively demonstrate that she has rehabilitated herself since the illicit conduct occurred. Aquino v. Department of Professional Regulation, Board of Real Estate, 430 So.2d 598 (Fla. 4th DCA 1983.)

   
   

7. Whether justified or not, Schechter has been arrested on two occasions and has pled guilty to an assortment of charges. These convictions (even though adjudication was withheld) trigger the kind of inquiry required by Subsection 475.17(1)(a), F.S.(1985). The only testimony concerning the matters raised in the foregoing statute are from her present employer who described her as being honest, courteous and dependable, and that she had handled his money in a responsible manner. The letters of recommendation, which tend to corroborate this, predate her 1984 arrests and are accordingly not germane to the statutory inquiry. Nevertheless, the uncontradicted testimony established that Schechter is honest, truthful, trustworthy, and of good character, and has a reputation for fair dealing. The second inquiry is whether applicant, since her 1984 arrests, is qualified for licensure "because of lapse of time and subsequent good conduct arid reputation, or other reason deemed sufficient." In this regard the evidence reveals that she has satisfactorily completed her term of probation, and has had no further blemishes on her record since that time. In view of this, it is concluded that Schechter has met the statutory criteria, and that her application should be approved.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's application for licensure by examination be

granted.

DONE and ORDERED this 10th day of December, 1986 in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

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 10th day of December, 1986.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1421

Respondent:

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered in finding of fact 2.

5. Covered in finding of fact 2.

6. Covered in finding of fact 2.

7. Covered in finding of fact 2.

8. Covered in finding of fact 5.

9. Covered in finding of fact 5.

10. Covered in finding of fact 5.

COPIES FURNISHED:

Ida M. Lawry, Esquire

621 South Federal Highway Suite 4

Ft. Lauderdale, Florida 33301

Lawrence S. Gendzier, Esquire

400 West Robinson Street Suite 212

Orlando, Florida 32801

Harold Huff Director

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-001421

Orders for Case No: 86-001421