STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNY L. HAIR, )

)

Petitioner, )

)

v. ) CASE NO. 86-3599

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on September 15, 1987, in Clearwater, Florida. The issue for determination in this proceeding is whether petitioner is qualified for licensure as a real estate salesman in Florida.

APPEARANCES

For Petitioner: Donny L. Hair

2606 Hollyridge Drive

New Port Richey, Florida 33552

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. In April of 1986, the petitioner, Donny Lynn Hair, filed an application for licensure as a real estate salesman. In answering Question Number 6 of the application, which requests information concerning an applicant's criminal record, petitioner answered in the affirmative, explaining

   
   

   "1975 Lewisburg, Ohio - for fighting.

   2 years probation.

   
   

   1983 Santa Monica, Cal. - for child molesting.

   4 years probation."

   
   

2. At the final hearing, petitioner testified in his own behalf. He explained the "fighting" incident as one occurring during his school years when a "bully" had broken his nose and he became upset with him. For that offense,

   he was placed on probation for a period of two years. In 1983, petitioner was charged with two counts of child molesting. At the time, petitioner was 25 or

   26 years old, and the charges involved two young girls, ages six and seven. For these offenses, petitioner was placed on probation for a period of four years, with a condition that he not associate with children under the age of 18. The probationary period ended in September of this year. Petitioner testified that he has learned from his past mistakes, and that he has not violated the terms of his four-year probation.

   
   

3. Petitioner presented no other witnesses to testify in his behalf, nor was any documentary evidence offered by the petitioner.

   
   

4. A composite exhibit was received into evidence as Hearing Officer's Exhibit 1. This exhibit is comprised of petitioner's application for licensure and various other documents related thereto, including two forms purportedly completed by persons listed on petitioner's application as references. While each of the two references indicated on the form provided that petitioner was of good character, neither was aware of petitioner's criminal convictions for child molesting.

   
   

   CONCLUSIONS OF LAW

   
   

5. An applicant for a professional license has the burden of establishing that he meets all the requirements of law for such licensure. The pertinent statutory requirements for a real estate salesman license include the following:

   
   

   "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 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 investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, for his registration or license to practice or conduct any regulated profession,

   business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, 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 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."

   
   

   In addition, Section 475.25(1)(f), Florida Statutes, provides that an application for licensure may be denied if the applicant has been convicted or found guilty, regardless of adjudication, of a crime which involves moral turpitude.

   
   

6. "Moral turpitude" is defined as "anything done contrary to justice, honesty, principle, or good morals." State ex rel Tullidge V. Hollingsworth, 146 So.666 (Fla. 1933). The nature of the crime committed by petitioner in 1983, child molesting, is undoubtedly one involving moral turpitude. Petitioner, having the burden of proof in this proceeding, has simply failed to demonstrate that he meets the criteria necessary to qualify for licensure as a real estate salesman.

   
   

7. In the vast majority of instances, a real estate salesman will be involved with members of the general public who will be sellers or purchasers of real property. The licensee will have easy access to homes in which minors reside. Petitioner has failed to demonstrate with adequate assurances that there will be no recurrence of the acts committed in 1983 with respect to minor children. Even if it can be concluded by petitioner's testimony alone that he has abided by and complied with the terms of his probation, a sufficient amount of time has not elapsed to conclude that petitioner, absent the restraints and supervision attendant to a court-ordered probation, will continue to abstain from conduct involving moral turpitude. There simply was no evidence adduced by the petitioner that would justify a conclusion that, because of lapse of time and subsequent good conduct and reputation, the interest of the public will not likely be endangered by the granting of licensure. Accordingly, it is concluded that petitioner has failed, at this time, to meet the personal qualifications for licensure as a real estate salesman.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as a real estate salesman be DENIED, without prejudice to petitioner to reapply for such licensure after a period of two years.

Respectfully submitted and entered this 27th day of October, 1987, in Tallahassee, Florida.

DIANE D. TREMOR

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 27th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3599

The parties were informed of the opportunity to submit proposed findings of fact and proposed conclusions of law subsequent to the final hearing. Counsel for the respondent availed himself of the opportunity, and his proposed findings of fact have been accepted and included herein. The petitioner did not submit any post-hearing proposals.

COPIES FURNISHED:

Donny L. Hair

2606 Hollyridge Drive

New Port Richey, FL 33552

Manuel E Oliver, Esquire Assistant Attorney General Suite 212, 400 West

Robinson Street Orlando, FL 32801

Darlene F. Keller

Acting Executive Director Department of Professional

Regulation

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32801

Docket for Case No: 86-003599

Orders for Case No: 86-003599