STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KRISTIN M. YANICK, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3020

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Stuart, Florida on August 18, 1987. The issue for consideration was whether Petitioner was properly denied the opportunity to sit for the examination for real estate salesman in Florida because of her arrest and subsequent disposition for possession of cocaine.

APPEARANCES

Petitioner: Bruce N. Wilkinson, Esquire

Fields, Wilkinson, Rifkin & Spittler, P. A.

55 East Osceola Street Stuart, Florida 33494

Respondent: Manuel E. Oliver, Esquire.

Department of Legal Affairs

400 W. Robinson, Room 212 Orlando, Florida 32801

BACKGROUND

On July 14, 1987, Petitioner requested a formal hearing on the Florida Real Estate Commission's, (Commission), denial of the her application for licensure by examination as a real estate salesman in Florida on the basis that on July 15, 1986, she was arrested for possession of cocaine, resisting an officer without violence, and possession of narcotic equipment and was subsequently convicted of the possession of cocaine. The matter was forwarded to the Division of Administrative Hearings and assigned to the undersigned who, on July 30, 1987, set the case for hearing as held.

At the hearing, Petitioner testified in her own behalf and presented the testimony of Robert U. Johnson, a Deputy Sheriff in Martin County, Florida; Martin T. Zientz, Petitioner's Probation Officer; Sherry L. Ketchum, a registered real estate broker; Jacqueline L. Esker, a friend and fellow church member; Edward Bessemer, a former employer; Frances J. Yanick, Petitioner' s mother-in-law and prospective employer; and Carole F. Silva, Petitioner's

sister. Petitioner also introduced Petitioner's composite Exhibit 1. Respondent offered no testimony and presented no documentary evidence.

No transcript of proceedings was furnished and neither party submitted post trial proposed Findings of Fact.

FINDINGS OF FACT

1. Petitioner applied for licensure by examination as a real estate salesman sometime prior to July 14, 1987 but her application was denied because she had been convicted of the possession of cocaine.

   
   

2. On July 15, 1986, the Petitioner, Kristin M. Yanick, was arrested in Martin County, Florida, and charged with possession of cocaine, resisting an officer without violence, and possession of narcotics equipment. Thereafter, the court withheld adjudication of guilt on the possession of cocaine charge and dismissed the others, and, in November, 1986, placed her on probation for five years, assigning her to Mr. Martin T. Zientz, a Probation Officer.

   
   

3. Petitioner successfully carried out the terms of her probation until sometime in May, 1987 when one of her periodic drug analysis reports requested by the Probation Officer came back positive for cocaine. Petitioner immediately and voluntarily entered a detoxification unit and Mr. Ziantz considers this an isolated incident. Since her release from the detoxification unit he considers her conduct to have been exemplary.

   
   

4. Petitioner has taken a job and, according to interviews conducted with her supervisors is doing well. Mr. Zientz is convinced that Petitioner will stay clean of drugs because of her strong goal of getting a real estate license. He is willing to work with the Real Estate Commission to ensure she remains free of drugs if such could be made a condition imposed by the Commission.

   
   

5. Mr. Zientz does not feel Petitioner is manipulating the system. She works closely with him and he would consider her to be in the top 15 percent of his probationers. She will be eligible for termination of probation when she has completed one-half her sentence. He considers her to be a responsible individual and he believes she could serve effectively as a real estate salesman.

   
   

6. These sentiments are shared by Deputy Johnson who has known Petitioner for about two years including the period of her difficulty with drugs. Subsequent to her treatment, he has seen a considerable difference in her attitude and outlook. She is working and has taken over the care of her own children who previously were with her parents and she appears to have improved physically. Johnson, too, feels that she is not a manipulative person and is sincere in her efforts to be a responsible individual.

   
   

7. Petitioner is quite active in her church and its Sunday School. According to Jacqueline Esker, Petitioner has filled in as a substitute Sunday School teacher and Mrs. Esker feels that Petitioner is making a sincere effort to get on with her life and her children. She is active in other church activities as well. Mrs. Esker is aware of Petitioner's problems with drugs and would nonetheless, have no hesitancy in allowing Petitioner to teach her children in Sunday School. She feels safe with her children in Petitioner's care.

8. Petitioner worked for Mr. Edward Bessemer several years ago. He is aware of her drug problem and can see a night and day difference in her since her rehabilitation. While she was working for him, she had the keys to his office and his home and had access to petty cash. Even when she was involved with drugs, she never violated his trust and he would trust her with his life. He considers her to be responsible, conscientious, and an honest person. If it were possible for him to do so, he would hire her on a full time basis.

   
   

9. Sherry Ketchum, a former member of the Ethics and Standards Committee of the Martin County Board of Realtors, worked with Petitioner in the same real estate office during the period Petitioner was having trouble with drugs. Since her rehabilitation , Petitioner has become a conscientious employee with a good attitude. She is punctual and responsible and Ms. Ketchum has no reservations about Petitioner sitting for the real estate examination.

   
   

10. When they were working together for a developer, Petitioner showed homes for Ms. Ketchum and had access to private property. There was never any indication of Petitioner's dishonesty and were she able to do so, Ms. Ketchum would hire Petitioner.

    
    

11. Frances J. Yanick, mother of Petitioner's estranged husband, has known her for approximately 5 to 6 years and is aware of Petitioner's drug problem. Mrs. Yanick has seen a tremendous change in Petitioner's behavior. She has taken hold of her life and is going to work every day; her children are well taken care of; she is active in the church; and has made a responsible effort to manage her time and set a goal for herself.

    
    

12. Mrs. Yanick, does not feel that Petitioner is manipulating the system. She believes that Petitioner should be allowed to sit for the examination since she has proven she is capable, honest, and trustworthy and would be no threat to the public. If Petitioner is allowed to earn her license, Mrs. Yanick intends to hire her.

    
    

13. Petitioner admits she is guilty of possessing cocaine. However, she contends, prior to her arrest, she enrolled in the Palm Beach Institute, a drug rehabilitation facility, on her own because she knew she needed help. She has learned a lot about her addiction.

    
    

14. Petitioner has wanted to be a real estate agent even prior to her arrest but at that time, did nothing about it. After her arrest, she decided she had to do something positive or she would never get her life in shape. She stopped using drugs, voluntarily entered a drug rehabilitation program, and enrolled in real estate school.

    
    

15. Petitioner admits that in April, 1987, she again used cocaine. For the most part, however, she has continued with mental health counseling , has entered Alcoholics Anonymous , and has enlisted the support of her pastor and her mother-in-law. She believes this is a very strong support system and will be instrumental in keeping her drug-free.

    
    

16. She now has hope instead of despair and courage instead of depression. She got rid of all her old friends and has new ones; she has developed a routine to live by; and, most important, she has grown up. She has self-discipline and has opened a new relationship with her children , and , hopefully, with her husband.

17. Understanding the legitimate concern of the Real Estate Commission and recognizing that licensing is a privilege with responsibilities attendant thereto and not a right, she feels confident she can handle these responsibilities. She believes her dependency is sufficiently under control that she can handle the responsibilities that would go with licensing as a real estate salesman . Her support system is sufficient to bolster her when things do not go as she would hope. She is willing to work under any conditions imposed by the Commission.

    
    

18. Petitioner submitted a package of letters from numerous individuals testifying to her rehabilitation and recovery. These include her addiction counselor at the Indian River Mental Health Center; her sister; her pastor; Mr. Johnson; Mr. Lucien Roy, a former employer in the investment business; her mother-in-law; her husband; the church secretary; neighbors; other real estate professionals; co-workers; and acquaintances; all of whom support her in her effort toward licensure. In their opinion, she is honest, sincere, dependable, enthusiastic, and conscientious and should not be continually penalized because of her one mistake with drugs.

    
    

19. Petitioner's sister, Ms. Silva, who was herself an addict, is now a rehabilitation professional in Palm Beach County. She concludes that Petitioner has all the right things going for her. The biggest thing in Petitioner's favor at the moment is her participation in Alcoholics Anonymous. She believes that Petitioner, honestly recognizing that she has and will continue to have a drug addiction, can nonetheless manage it with continuing success.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

21. Under the provisions of Section 475.25(1)(f), Florida Statutes, the Commission may deny an application for licensure if it finds that the applicant:

    
    

    (f) has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesman or involves moral turpitude or

    fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this

    paragraph.

    
    

22. As a matter of law, the possession of cocaine is considered an offense involving moral turpitude.

    
    

23. Section 475.17(1), Florida Statutes, requires that to be eligible for licensure as a real estate salesman in this state, an applicant shall be:

    
    

    1. ... honest, truthful, trustworthy and of good character and shall have a good reputation for fair dealing ...

       [However, 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.

       
       

24. Here, Petitioner has been convicted of an offense involving moral turpitude. This would be sufficient to suspend or revoke her license if she were licensed and, under the law, is sufficient to deny her licensure under both Section 475.25 and 475.17.

    
    

25. Petitioner was involved in her disqualifying offense only one year prior to the hearing and was placed on probation less than one year ago. Even during that time, as late as April, 1987, she found herself again involved with drugs. It is to her credit that she immediately turned herself in and underwent rehabilitation.

    
    

26. It is also true that her probation officer, the deputy sheriff, and those who testified or submitted testimonials in her behalf feel that she has been rehabilitated sufficiently to fall within the purview of 475.17. They all feel she is trustworthy and none feels she is being manipulative. Respondent presented no evidence to contradict this overwhelming outpouring of affection and support for Petitioner.

    
    

27. Consequently, if the community in which she lives and which knows her best considers her trustworthy and a good candidate for licensure, absent a showing by Respondent of matters to offset this support, she should be allowed to sit for the examination. The slip in April, 1987 apparently did not adversely affect her reputation within her community. It obviously feels she has been rehabilitated and its interests will not be a endangered by the granting of registration.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner, Kristin Yanick be permitted to sit for the examination for licensure as a real estate salesman in Florida.

RECOMMENDED this 2nd day of October, 1987, at Tallahassee, Florida.

ARNOLD H. POLLOCK

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 October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3020

The following constitutes my specific rulings pursuant to Section 120.57(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner

1. Accepted and incorporated in Finding of Fact 1.

2. Accepted and incorporated in Finding of Fact 2.

3. Accepted and incorporated in Finding of Facts 1 and 2.

4 and 5. Accepted and incorporated in Finding of Facts 1 and 2.

1. Accepted.

2. Accepted and incorporated in Finding of Facts 4, 6, 7, 8, 9, 10, 11 and

   12.

3. Accepted and incorporated in Finding of Facts 3-5.

For the Respondent

1 and 2. Accepted and incorporated in Finding of Facts 1 and 2.

1. Accepted and incorporated in Finding of Facts 3 and 15.

2. Rejected as a restatement of the evidence and cumulative.

3. Rejected as a restatement of the evidence or comment thereon.

COPIES FURNISHED:

Bruce M. Wilkinson, Esquire

55 East Osceola Street Suite 100

Stuart, Florida 34994

Manuel E. Oliver, Esquire Department of Legal Affairs

400 West Robinson Street Room 212

Orlando, Florida 32801

Tom Gallagher, Secretary Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

William O'Neil General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller, Acting Director Department of Professional Regulation

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 87-003020

Orders for Case No: 87-003020