STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH M. BAURLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5537

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard by Willian Dorsey, the Hearing Officer designated by the Division of Administrative Hearings, on March 14, 1989 in Fort Lauderdale, Florida. Both parties were given the opportunity to file proposed findings of fact and conclusions of law. The Real Estate Commission waived the opportunity to file proposed findings; rulings on findings proposed by Mr. Baurley are made in the Appendix to this Recommended Order.

APPEARANCES

For Kenneth Baurley: Marion E. Baurley, Esquire

1025 Vermont Avenue, North West Suite 915

Washington D.C. 20005

For the Florida Real

Estate Commission: Lawrence S. Gendzier, Esquire

Department of Legal Affairs

400 West Robinson Street, 212 Orlando, Florida 328802

ISSUE

The issue is whether Kenneth Baurley should be eligible to sit for the examination to become licensed as a real estate salesman.

PROCEDURAL BACKGROUND

By letter dated October 3, 1988, the Real Estate Commission denied the application of Kenneth M. Baurley for licensure as a real estate salesman. Mr. Baurley made a timely request for a formal administrative hearing.

At the hearing the Respondent offered two exhibits which were admitted into evidence without objection. Petitioner presented the testimony of three witnesses, including himself.

FINDINGS OF FACT

1. On July 14, 1988, Mr. Baurley's application for licensure as a real estate salesman was received by the Florida Real Estate Commission (Commission).

   
   

2. By letter dated October 3, 1988, the Commission notified Baurley that his application had been denied based on his answer to question 6 on the application.

   
   

3. In responding to that question, Mr. Baurley disclosed that he had been involved in two criminal proceedings; in both an adjudication of his guilt had been withheld. The first case arose in 1982 on the charge of battery on a law enforcement officer, for which he received 18 months of supervised probation. The incident had its genesis in a shoving match involving Baurley and someone who turned out to be an off-duty police officer for a small municipality. The second was in 1983 for the municipal offense of prowling. Although under no obligation to do so, Mr. Baurley also stated that he had been arrested for driving under the influence in 1988. He was found not guilty on the last charge, so it has no bearing on the decision in this case.

   
   

4. Mr. Baurley's response to question 6 was complete and truthful.

   
   

5. At the time of these incidents, Mr. Baurley was 19 and 20 years of age. He successfully completed his probation. He has had no further relevant contacts with the criminal justice system for more than five years.

   
   

6. Mr. Baurley is now 26 years old. He has resided in Pompano Beach, Florida since 1972, although he attended college in Tallahassee. He is employed currently as President of A Better Limousine Service, Inc. and as a supervisor at Baurley Marine Works, Inc., which is owned by his father. Prior to his employment in these two positions, Mr. Baurley worked in a business established by his brother, Baurley "No Frills" Auto Rental.

   
   

7. Before he held these positions, Mr. Baurley attended college in Tallahassee and worked at Doc's Sports Bar and Grill and at Forest Meadows Athletic Club. He was also an adjunct instructor at Florida State University where he taught Tae Ywon Do for college credit.

   
   

8. In the course of his employment in the positions set out in Findings 6 and 7 above, Mr. Baurley has been required to interact with patrons, sometimes under difficult circumstances.

   
   

9. In all the positions delineated in Findings 6 and 7 (other than the position as adjunct instructor at Florida State University) Mr. Baurley has been required to handle other people's money on at least a weekly basis. Most of the positions have required him to deal with his employers' or customers' money on a daily basis.

   
   

10. Petitioner has performed all his employment responsibilities honestly and without incident.

    
    

11. Darlene Vlazeny, a real estate salesperson and housewife, met Mr. Baurley in a business capacity by telephone in October, 1988. At that time Mrs. Vlazeny was soliciting in-kind contributions on behalf of a school for hearing impaired children. Mrs. Vlazeny testified that Mr. Baurley's was the only limousine company which agreed to her request to provide limousine services in connection with a benefit for the school at reduced rates. Since the school

    benefit, Mrs. Valzeny has had social contact with Mr. Baurley. She is aware of the incidents detailed in his answer to question number 6 on his licensure application, but believes he is trustworthy, honest and has a high moral character based on her experiences with Baurley. Mrs. Vlazeny would have no reservation about working with Mr. Baurley in any professional capacity.

    
    

12. John Belegesky, a practicing attorney for more than 30 years, has known Mr. Baurley since he was a small boy. Baurley and Mr. Belegesky's son have been friends since grade school. Mr. Belegesky is also aware of Mr. Baurley's past and believes that the acts disclosed in the response to question number 6 to be out of character for him, and the result of youthful indiscretion. Mr. Belegesky trusts Petitioner to have a key to his home, which contains many valuables, and to houseset when he and his wife are away for weeks at a time. Mr. Belegesky would have no reservation about referring his clients, including major developers, to work with Mr. Baurley, if he is licensed. Mr. Belegesky believes Mr. Baurley possesses a high moral character and is honest and trustworthy.

    
    

13. Mr. Baurley has matured and regrets his past actions.

    
    

14. Mr. Baurley is honest and trustworthy and is of good moral character.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over parties to and subject matter of these proceedings. Chapter 120, Florida Statutes.

    
    

16. Section 475.17(1), Florida Statutes, requires that applicants for real estate licenses be honest, truthful, trustworthy, of good character and have a reputation for fair dealing. If the applicant has been guilty of conduct in Florida or elsewhere which would have been grounds for revoking or suspending a Florida license had the applicant then been licensed, the applicant is unqualified for licensure. This disqualification does not apply if, because of lapse of time and subsequent good conduct and reputation, or other sufficient reasons, it appears that the interest of the public and investors are not likely to be endangered by granting the applicant a license. Id.

    
    

17. Section 4-75.25(1)(f), Florida Statutes, permits the Commission to deny an application for licensure when an 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 is considered a conviction.

    
    

18. The offenses to which the applicant has plead nolo contendere do not involve fraudulent or dishonest dealing or moral turpitude, and do not directly relate to the activities of a licensed salesman or broker. Mr. Baurley is not guilty of violation of Section 475.25(1)(f), Florida Statutes.

    
    

19. The purpose of Chapter 475, Florida Statutes as stated in Section

    475.001 is "to assure the minimal competence of real estate practitioners." Dishonest licensees could subject members of the public who deal with those practitioners to economic loss.

    
    

20. Petitioner's conduct since the resolution of his cases indicates that those actions were aberrations and are no longer, if they ever were,

    representative of his conduct and character. Mr. Baurley's testified honestly in the proceeding and now enjoys a good reputation for honesty and integrity.

    
    

21. An experienced attorney and a real estate professional both would trust him to handle real estate transactions and associated financial matters. Based on the passage of time since Mr. Baurley's incidents of misconduct and his current good reputation, there is no reason to believe that Mr. Baurley would constitute a potential source of injury to the public while licensed as a real estate salesman.

RECOMMENDATION

Based on the foregoing, it is

RECOMMENDED that the Petitioner, Kenneth M. Baurley, be allowed to take the examination for licensure as a real estate salesman and if he passes the examination, be issued a real estate salesman license.

DONE and ORDERED this 28th day of April, 1989, in Tallahassee, Florida.

WILLIAM R. DORSEY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-5537

The proposed findings of Mr. Baurley have generally been adopted.

COPIES FURNISHED:

Lawrence S. Gendzier, Esquire Department of Legal Affairs

400 West Robinson Street, Room 212 Orlando, Florida 32802

Marion E. Baurley, Esquire

1025 Vermont Avenue, North West Suite 915

Washington, D.C. 20005

Kenneth E. Easley General Counsel

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller Division Director

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32902

Docket for Case No: 88-005537

Orders for Case No: 88-005537