STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY LAMAR WHITE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3598

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held in Tampa, Florida on February 3, 1987 before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings, to consider the issue of whether Larry Lamar White (Petitioner) is qualified for licensure by the Florida Real Estate commission (Respondent). The parties were represented as follows:

Petitioner: Larry Lamar White

510 East Frierson Avenue Tampa, Florida 33603

Respondent: Lawrence S. Gendzier

Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

At the hearing, Petitioner testified on his own behalf and also called Andrew Carl Atkison to testify. Respondent introduced two exhibits. A transcript of the hearing was filed on February 17, 1987, and the parties were allowed to file proposed recommended orders within ten days thereafter.

Specific rulings on timely filed proposed findings of fact are included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner was a member of the United State Army stationed in Korea from the Fall, 1983 until early 1984, having achieved the rank of E-5.

   
   

2. In December, 1983 Petitioner overpurchased certain rationed items. Specifically, he purchased three months of rationed items, having accumulated allocations from prior months, although he was only authorized to utilize the ration allocation for the current month. Petitioner testified he did not know, and was not told, that unused allocations for rationed items could not be accumulated and utilized later.

   
   

3. Petitioner plead guilty to the misdemeanor charge resulting from this overpurchase. He spent two months in confinement, was reduced in grade from E-5 to E-1, and forfeited $150 in pay for four months.

4. As a result of his loss in grade, Petitioner understood that his pay would be reduced to that of E-1. However, upon receipt of his pay following his reduction in grade, he realized his pay had only been reduced the $150 per month he was to forfeit for four months, but had not been reduced to that of E-1. He allowed another month to go by, and when the adjustment still was not made he reported this to his commanding officer. Shortly thereafter, Petitioner was reassigned to duty within the United States, and he testified he reported the continued overpayment to his new commanding officer.

   
   

5. A total of eight months elapsed after he was reduced in grade when he continued to receive E-5 pay.

   
   

6. Thereafter, Petitioner was charged in December, 1984 with the misappropriation of government funds, a felony, and on February 26, 1985 he plead guilty to this charge. He was confined for six months, without pay, and given a misconduct discharge.

   
   

7. On or about May 29, 1986 Petitioner applied for licensure as a real estate salesman in the State of Florida, and in response to Question 6 he fully disclosed his guilty pleas to the two offenses described above, the sentences imposed, and the fact that he had received a misconduct discharge.

   
   

8. On or about September 11, 1986 Petitioner was notified on behalf of Respondent that his application for licensure would be denied based upon his answer to Question 6 and the offenses noted therein. Petitioner timely requested a hearing.

   
   

9. Petitioner honestly disclosed his prior offenses occurring in 1983 and 1984 on his application for licensure. He offered the testimony of Andrew Carl Atkison, a friend and former business associate, in mitigation and to establish his honesty since his misconduct discharge.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes. Respondent has the responsibility and authority to license real estate salesmen in this state. Section 475.181, Florida Statutes.

    
    

11. As an applicant for licensure, Petitioner bears the burden of establishing his qualifications for a real estate salesman's license. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

12. Pursuant to Section 475.181(2), Florida Statutes, an application for licensure may be denied if an applicant has violated any provision of Section 475.42, Florida Statutes. Subsection (1)(f) of Section 475.42 identifies conduct set forth in Section 475.25(1)(b) as a violation for which an application for license may be denied. In pertinent part, Section 475.25(1)(b) provides:

    
    

    1. Discipline.--

       1. The commission may deny an application for licensure. . . if

    it finds that the licensee, permittee, or applicant:

    (b) Has been guilty of fraud,

    misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach of trust in any business transaction

    in this state or any other state, nation, or territory;. . .

    
    

    Additionally Subsections (1)(f) and (1)(o) of Section 475.25 authorizes the denial of any application for licensure if the applicant:

    
    

    (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which involves moral turpitude or fraudulent or dishonest dealing.

    (o) Has been found guilty, for a second time, of any misconduct that warrants his suspension or has been found guilty of a course of conduct or practices which show that he is so. . . dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom he

    may sustain a confidential relation, may not safely be entrusted to him.

    
    

13. Petitioner does not dispute his prior conduct in the Army which constitutes a violation of the above cited provisions, and which thereby constitutes sufficient grounds to deny his application for licensure. However, Petitioner asserts by his own testimony and that of Andrew Carl Atkison, that in the time since he plead guilty to the misdemeanor and felony charges, and was given a misconduct discharge, he has established a reputation for honesty and good conduct. Section 475.17(1)(a) states:

    
    

    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 the 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.

    
    

14. As set forth above, Petitioner has the burden to establish his qualifications for licensure and specifically the basis for the application of Section 475.17(1)(a), Florida Statutes. The evidence offered on behalf of Petitioner does not establish that a sufficient lapse of time has occurred, with

    subsequent good conduct and reputation, since his misconduct discharge which followed his plea of guilty to a felony on February 26, 1985. The testimony of Petitioner's one supporting witness was vague and did not establish a continuing business or personal relationship since Petitioner's discharge.

    
    

15. Additionally, Petitioner offered no specific evidence of his work record and community involvement since his discharge, upon which a finding of good conduct and reputation could be made. His own assertions of good conduct are not enough to sustain the burden he has in this proceeding in view of his own admissions of prior misconduct.

RECOMMENDED

Based upon the foregoing, it is recommended that Respondent enter a Final Order denying Petitioner's application for licensure.

DONE AND ENTERED this 2nd day of March, 1987 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3598

Rulings on Resrondent's timely filed Proposed Findings of Fact:

1 - 3 Adopted in Finding of Fact 7.

1. Adopted in Finding of Fact 8.

2. - 7 Adopted in Findings of Fact 2, 3.

8 - 9 Adopted in Findings of Fact 4, 5, 6.

COPIES FURNISHED:

Larry Lamar White

510 East Frierson Avenue Tampa, Florida 33603

Lawrence S. Gendzier Assistant Attorney General

400 West Robinson Street, Suite 212 Post Office Box 1900

Orlando, Florida 32801

Harold Huff Executive Director

Division of Real Estate Post Office Box 1900 Orlando, Florida 32801

Van B. Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Wings S. Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 86-003598

Orders for Case No: 86-003598