JOSEPH L. EDGERTON, )
vs. ) CASE NO. 86-2114
Respondent. )
Consistent with the Notice of Hearing furnished to the parties by the undersigned on June 30, 1986, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Delray Beach, Florida, on September 5, 1986. The issue for consideration was whether Petitioner should be allowed to take the Florida Real Estate Examination or be denied because of his failure to thoroughly answer certain questions on the application form.
For the Petitioner: Joseph L. Edgerton, Pro se
For the Respondent: Joyous D. Parrish, Esquire
By undated letter filed with the Florida Real Estate Commission on April 18, 1986, Randy Schwartz, Assistant Attorney General and Counsel for the Commission, advised the Petitioner that the Commission had denied his application for licensure based on his answer to questions 6 and 11 of the application form and his criminal record as maintained by appropriate law enforcement agencies. Thereafter, Petitioner requested a hearing before the Division of Administrative Hearings to present evidence that he is qualified to be a real estate salesman and his request was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer.
At the hearing, Petitioner testified in his own behalf and presented Petitioner's Exhibits 1 through 5. Respondent also presented the testimony of the Petitioner on direct examination and introduced Respondent's Composite Exhibit A.
Subsequent to the hearing, Respondent submitted proposed Findings of Fact, all of which are incorporated herein. While proposed Finding of Fact 5 for Respondent shows Petitioner was denied licensure by another agency initially, he was subsequently granted licensure by that agency on submission of requested information.
On or about January 13, 1986, the Petitioner submitted an application to take the real estate salesman's test offered by the Florida Real Estate Commission. This application was received in the offices of the Division of Real Estate on January 15, 1986.
Paragraph six on the application form asks:
Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?"
Respondent answered "yes" to this question and included the details as follows: "October 3, 1979, West Palm Beach, possession of cocaine, 10 years probation."
Court documents reveal that on May 22, 1980, the Petitioner entered a plea of guilty to the charge of possession of cocaine with intent to sell, was found guilty by the court, and was placed on 10 years probation with imposition of sentence withheld. Though there is a slight conflict in dates between that stated by Petitioner and that on the court record, this is accounted for by the former being date of arrest and the latter being date of conviction. The inconsistency is immaterial.
Paragraph 11 of the application form asks in pari materia, "(a) Have you, in this state, filed any
application for licensure which was denied?
If so, state when denied."
In response to this question, Petitioner indicated in the affirmative to the issue of whether his licensure was denied and explained that his application for a mortgage solicitor's license was denied by the Department of Finance in 1980 when he failed to disclose arrests in Connecticut when he was 15 and 16 years old.
Records maintained by the FBI reveal that on October 8, 1974, he was arrested on a charge of disorderly conduct, was convicted, and was sentenced to
15 days suspended (confinement) and a fine of $75.00. On November 13, 1974, he was arrested on a charge of burglary, larceny, and criminal mischief for which court disposition was unknown because he was a youthful offender. On March 20, 1975, he was arrested on a charge of criminal mischief but the charge was dismissed. On April 4, 1975, he was arrested on a charge of possession of marijuana and a charge of possession of a controlled drug. In each case, he was convicted and sentenced to 30 days suspended (confinement) and 9 months probation. On January 23, 1977, he was arrested for possession of marijuana and possession of a controlled drug, was convicted on the marijuana charge, and was fined $75.00. Charges were dismissed on the other charge. On February 8, 1978, he was arrested on a charge of criminal mischief but the charge was dismissed and not prosecuted. All of "the above arrests and dispositions took place in
Newington, Connecticut. On October 3, 1979, Petitioner was arrested in West Palm Beach, Florida, on a charge of trafficking in cocaine and possession of marijuana. He was placed on 10 years probation and this is the offense referred to in Petitioner's answer to question 6.
On July 27, 1985, Petitioner was arrested in Lake Worth, Florida, on a charge of sexual assault on a child but charges were dismissed when the complainant failed to show up at the hearing and could not thereafter be found. Notwithstanding the dismissal, a description of the charge was referred to the Florida Real estate Commission by the county.
Respondent was born on August 28, 1958, and is at the present time 28 years old. At the time of the arrests in Connecticut, he was 16 to 20 years old. At the time of the cocaine arrest in 1979, he was 21. He has not been convicted of anything since that time and his ten year probation for cocaine conviction was terminated by the Circuit Court three years early on the basis that he had been successfully rehabilitated and further probation was no longer necessary.
When Petitioner initially applied for licensure as a mortgage solicitor, he failed to list the juvenile arrests and convictions on the application for that license and when the background investigation was conducted and these arrests and convictions were made known, his license was denied by the Department of Insurance. When he contacted officials of the department, he was told that his failure to list these juvenile arrests and convictions as the basis for denial. After discussion of the situation with them, in which he was advised of the need to fully disclose all relevant factors, he submitted a new complete application and the license was granted.
Petitioner claims he has been guilt-free since his conviction in 1980 for the cocaine offense. The subsequent arrests for shoplifting and lewd assault did not result in a conviction in either case. The armed robbery arrest in 1980 was based on the confession of another individual in Connecticut who implicated him in his own confession. The arrest of the confessor took place in Connecticut which attempted to extradite Petitioner from Florida. He was arrested and confined pending extradition for four months, but after hearing, at which it appeared Petitioner had a complete alibi, the extradition action was dismissed.
The Commission's denial of licensure to this Petitioner was based on his conviction for possession of cocaine and for his failure to disclose his juvenile convictions in his application for the mortgage solicitor's license. Petitioner does not deny his cocaine conviction but relies on the fact that it took place when he was 21 years old. He has pleaded guilty and has paid a substantial price for his misconduct since that time. Petitioner readily admits the failure to disclose the juvenile convictions on the earlier application, but points out that they were juvenile offenses that took place many years previously; that most had resulted in no charge or suspended sentences; and that he did not realize it was necessary to list juvenile conviction about which he believed the court records were sealed. He admits he was in error and realizes now the need to make full disclosure especially in those areas where the question of integrity is paramount.
Petitioner asserts he is not a thief, a child abuser, or a homosexual. He readily admits that he has made several mistakes in his lifetime, but contends that over the past seven years he has maintained a good work record with no disciplinary involvements. He has, over these years, been in the
mortgage brokerage business and has even managed several offices. He has never been dishonest and has never stolen. The offenses of which he is guilty in no case related to either larceny or theft and he urges that the fact that he has been terminated from probation three years early, demonstrates his rehabilitation and trustworthiness.
Petitioner failed to call any independent witnesses to support his contentions of good character instead relying on his own testimony and his resume, nor were there any submissions of written testimonials. On the other hand, Respondent failed to show any indication of continued bad character or adjudged instances of improper behavior and lack of rehabilitation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 475.17(1), Florida Statutes, requires that to be eligible for licensing as a real estate salesman in this state, an applicant shall be:
...honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing....(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.
Section 475.25(1), Florida Statutes, provides that licensure can be denied if the applicant has been convicted of certain criminal conduct. Clearly, Petitioner has been adjudged guilty of conduct which would have been grounds for suspension or revocation. Consequently, the issue becomes whether he has been shown to now be "honest, truthful, trustworthy, and of good character"; whether he has "a good reputation for fair dealing"; and whether, because the six years has elapsed without further convictions, there is a sufficient "lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient," that it appears ... that the interest of the public and investors will not likely be endangered by the granting of registration to the Petitioner.
The burden to establish this is on the Petitioner. J.W.C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). Here he has shown that subsequent to his conviction in 1980, his probation has been terminated by the court. The fact that was done subsequent to the intervening arrests for shoplifting, lewd assault, and the like would tend to indicate that there was no substance to them and in fact, he was not convicted of any of them. However, he has failed to present even one character witness, one co-worker, a minister, or even a friend, to testify to his current good character and reputation. He has been in the area for several years and has worked at numerous positions in the intervening time. Surely there must be someone who
would be willing to vouch for his integrity and character. Cf. Aguino v. Department of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983).
The Real Estate Commission contends that Petitioner's conviction for possession of cocaine in 1979 and his failure to fully disclose arrests to the Department on his application for licensure as a mortgage solicitor place him outside the eligibility criteria according to the statute. Ms. Parrish's letter to Petitioner, explaining the basis for his denial refers to the alleged offenses of armed robbery, shoplifting, and lewd assault. None of these were established, however, and it is more likely that the denial of the mortgage solicitor's license was based not on those but on the juvenile offenses.
In substance, Petitioner has an extensive juvenile arrest record which goes back eight to twelve years to a time when he was between 16 and 20 years old. The majority of the offenses involved marijuana, controlled substances, or other drugs. The more recent and more serious offense, which took place in 1979, also involves drugs and the law is clear that drug offenses involve moral turpitude.
While the denial previously of licensure, which has subsequently been reversed, may not be sufficient to deny Petitioner the opportunity to sit for examination for the real estate salesman license, the drug conviction in 1980 technically is.
Countering this, however, is the fact that Petitioner was released from probation three years early which indicates the court's satisfaction that he was rehabilitated sufficiently to be out from under the constraints of that status. This judgement of the court tends to be substantiated by the fact that Petitioner has been gainfully employed in a regulated profession which is a position of trust and integrity for several years and has not been determined to have violated this trust in any way. The several arrests for assault, shoplifting, and lewd assault are not persuasive here in that none was proven.
What is clear is that Petitioner has made some serious mistakes in his life and has paid for them to the extent demanded by the law. How long he must continue to pay for them is another question. Petitioner has not presented an overwhelming showing of his good character nor, in fact, any showing of his reputation. In light of the fact that his conviction record is clear, however, over a period of more than six years and that he has been gainfully and productively employed in a position of trust over a substantial portion of that period without any established difficulties, it would appear that the interests of the public and investors will not likely be endangered by granting him registration.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore;
RECOMMENDED that Petitioner, Joseph L. Edgerton, be permitted to sit for the Florida Real Estate Salesman Examination.
RECOMMENDED in Tallahassee, Florida this 10th day of November, 1986.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1986.
Joseph L. Edgerton 3868 Victoria Drive
Joyous D. Parrish, Esquire Assistant Attorney General, Suite 212
Wings S. Benton, Esquire General Counsel
Mr. Harold Huff, Executive Director Florida Real Estate Commission
