STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE JOSEPH LAUFERSKY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3479

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 26, 1988, in Tallahassee, Florida, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: George Joseph Laufersky, pro se

7 Oak Lane

Lady Lake, Florida 32659

For Respondent: Lawrence S. Gendzier, Esquire

Assistant Attorney General

400 West Robinson, Room 212 Orlando, Florida 32801

BACKGROUND

This case deals with the proposed denial by Respondent, Florida Real Estate Commission, of Petitioner's, George Joseph Laufersky's, application for licensure as a real estate salesman.

At the hearing, Petitioner testified on his own behalf and did not offer any exhibits. Respondent offered two exhibits which were accepted into evidence.

Both parties filed post-hearing statements which contain proposed findings of fact. These are addressed in the Appendix which is attached to this Recommended Order.

ISSUE

Whether Petitioner's application for a real estate salesman's license should be approved?

FINDINGS OF FACT

1. Sometime in late February or early March, 1988, Petitioner submitted an application for licensure as a real estate salesman.

2. Petitioner's answers to questions 6 and 7 of the application reflected that in June or July 1987, he had pled guilty to conspiring to defraud the United States and was sentenced to serve 2 years on probation and assessed a

   $5,000 fine.

   
   

3. Based on Petitioner's answers to questions 6 and 7 of the application, Respondent denied Petitioner's application for licensure.

   
   

4. Petitioner's conviction for conspiring to defraud the United States was due to his involvement with two Farmers Home Administration projects to build low-income housing in Michigan.

   
   

5. In 1983, the Farmers Home Administration had allotted approximately

   $500,000 to fund each of 2 low-income housing projects consisting of 18 units each. The funding had been committed to a developer other than Petitioner.

   
   

6. The developer had been unable to arrange for the projects to be built. The developer had let out bids on both projects. The bid on one project came back under the amount allotted; however, the bid for the other project came back at approximately $105,000 over the amount allotted.

   
   

7. At this point, Petitioner was contacted by the developer and became a partner in the development of the two projects. Petitioner's job was to get the projects built.

   
   

8. Petitioner determined that it might be possible to construct the two projects for the total amount allotted, $1,000,000, if both projects were bid out together, since efficiencies should be achieved by bidding both projects as one. Petitioner let out a bid for the construction of both projects.

   
   

9. The bid came back at a slightly higher amount than that allotted. However, after some negotiations with the Farmers Home Administration the two projects were allowed to proceed.

   
   

10. However, the fact still remained that one project was more expensive than the other to build, and that the costs of the more expensive project exceeded the amount allotted by the Farmer's Home Administration.

    
    

11. In order to resolve this problem, Petitioner falsified some documents to make the accounting for each project show that both projects came in under the amount allotted even though this was not true. In effect, Petitioner used money allotted to the less expensive project to pay for the more expensive project.

    
    

12. In 1985, the Federal Bureau of Investigation began an investigation of all Farmers Home Administration projects in Michigan. Out of this investigation, Petitioner's involvement with the two projects was uncovered, and his subsequent plea of guilty and conviction were due to his falsifying the documents.

    
    

13. Petitioner held a real estate salesman's license in Michigan from 1975 to 1978. From 1978 to the present time, Petitioner has held a real estate broker's license in Michigan.

    
    

14. No disciplinary action has been taken by the State of Michigan on account of Petitioner's actions which led to his conviction.

15. Also, no action has ever been brought in Michigan arising out of Petitioner's activities representing buyers and sellers of real estate.

    
    

16. Petitioner has paid $150.00 of the $5,000.00 fine imposed by the Federal government. He has paid when he has had work.

    
    

17. Petitioner is in the process of filing for Chapter 11 reorganization in order to facilitate the payment of some debts.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57 and 120.60, Florida Statutes.

    
    

19. In a licensing case such as this, Petitioner has the burden of proving his entitlement to the license. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

20. Chapters 455 and 475, Florida Statutes, require that persons who desire to become a real estate salesman first obtain a license. Sec. 475.42, Fla. Stat.

    
    

21. Section 475.17, Florida Statutes, sets forth the qualifications an applicant must meet in order to be eligible for a license. Section 475.17(1)(a), Florida Statutes, provides, inter alia, that:

    
    

    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.

    
    

22. Section 475.25, Florida Statutes, sets forth the violations for which an application for license may be denied. Of relevance to this case is Section 475.25(1)(f), Florida Statutes, which provides that the commission may deny an application for licensure if the applicant:

    
    

    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.

    
    

23. There is no dispute in this case that Petitioner pled guilty and was convicted of conspiring to defraud the United States on June 16, 1987. Therefore, Petitioner has been convicted of a crime involving fraudulent or dishonest dealing, in violation of Section 425.25(1)(f), Florida Statutes.

    
    

24. The only remaining inquiry is whether Petitioner has shown that "the interest of the public and investors will not likely be endangered by the granting of the registration." Sec. 475.17(1)(a), supra.

    
    

25. From the evidence presented in this case, Petitioner's conviction is the only blot on his record. While he was convicted in 1986, the conviction was for actions taken in 1983, five years ago. He has been involved in the real estate business in Michigan as a licensed salesman (3yrs.) or broker (10 yrs.) for the past thirteen years and no disciplinary action has ever been taken against him. Finally, Petitioner is applying for a license as a real estate salesman. Therefore, his actions will be subject to the direction, control, or management of another person. Sec. 475.01(d), Fla. Stat.

    
    

26. In view of the fact that the activities which led to Petitioner's conviction occurred five years ago; that this is the only incident of misconduct committed by Petitioner, and that, if he is licensed, his activities will be supervised, it does not appear that the public will be endangered by the granting of the application.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission issue a Final Order

approving Petitioner's application for license as a real estate salesman.

DONE and ORDERED this 14th day of November, 1988, in Tallahassee, Florida.

JOSE A. DIEZ-ARGUELLES

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 14th day of November, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3479

The parties submitted proposed findings of fact which are addressed below.

Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact

Proposed Finding

of Fact Number Ruling and RO Paragraph

1. Accepted.

2. Accepted.

3. Accepted.

4. Rejected as not a finding of fact.

5. Accepted.

6. Rejected as not a finding of fact, but see Conclusions of Law section of RO.

7. Rejected as not a finding of fact.

Respondent's PRO posed Findings of Fact PRO posed Finding

of Fact Number Ruling and RO Paragraph

1. Accepted as modified in RO 1.

2. Accepted as modified in RO 3.

3. Subordinate.

4. Accepted as modified in RO 2, 4 and 12.

5. Accepted as modified in RO 11 and 12.

6. Accepted as modified in RO 16 and 17.

7. First 7 words are not a finding of fact; remainder of sentence is Rejected as contrary to the weight of the evidence.

COPIES FURNISHED:

George Joseph Laufersky

7 Oak Lane

Lady Lake, Florida 32659

Lawrence S. Gendzier Assistant Attorney General

400 West Robinson Room 212

Orlando, Florida 32801

Darlene F. Keller, Executive Director Division of Real Estate

400 West Robinson Orlando, Florida 32801

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-003479

Orders for Case No: 88-003479