STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN B. BAHNG, )

)

Petitioner, )

)

vs. ) CASE NO. 88-6011

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on March 1, 1989, in Orlando, Florida, before Daniel M. Kilbride, the duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Howard S. Marks

Attorney at Law

100 East Robinson Street Orlando, Florida 32801

For Respondent: Manuel E. Oliver

Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

STATEMENT OF THE ISSUES

1. Whether Petitioner's plea of guilty to the crime of possession of cocaine with intent to distribute is to a crime that involves moral turpitude or fraudulent or dishonest dealing, as required by Section 475.25(f), Florida Statutes, before the Commission may lawfully deny his licensing application.

   
   

2. Whether Petitioner is now deemed qualified to hold a real estate licence because of the lapse of time since his conviction and his subsequent good conduct and reputation, pursuant to Section 475.17(1)(a), Florida Statutes

   
   

3. Whether the Florida Real Estate Commission violated Section 120.59(1), Florida Statutes and Rule 28-5.405, Florida Administrative Code, in not approving or denying Petitioner's application within 90 days.

PRELIMINARY STATEMENT

By application dated July 26, 1988, Petitioner applied to Respondent for a Florida real estate salesman's license. In a letter filed in Petitioner's file with the Department of Professional Regulation on October 31, 1988, Respondent informed Petitioner that his application had been denied based on his answer to

question number six and his criminal record. On November 17, 1988, through his attorney a Petition Requesting Formal Hearing was filed before the Commission.

Petitioner testified himself, presented three witnesses, and offered into evidence three exhibits. Respondent presented no witnesses and offered into evidence two exhibits. All exhibits were admitted into evidence, two over Respondent's objection.

A transcript of the hearing was filed on March 17, 1989. Petitioner and Respondent waived filing of proposed recommended orders.

FINDINGS OF FACT

1. By application dated July 26, 1988, Petitioner applied to Respondent for a Florida real estate salesman's license.

   
   

2. Petitioner disclosed on the application, in response to question six, that he had been convicted of the crime of possession of cocaine with intent to distribute in March, 1986.

   
   

3. A subsequent criminal records check revealed that Petitioner entered a plea of guilty to the felony charge of possession with intent to distribute approximately seven ounces of cocaine, a controlled substance, in the United States District Court for the Middle District of Florida-Orlando on March 24, 1986. He was sentenced to three (3) years imprisonment to be followed by a special parole term of three (3) years.

   
   

4. Petitioner served twelve (12) months imprisonment and on April 6, 1987, he was released on parole. He is presently serving the remainder of his imprisonment on parole which is scheduled to be completed on April 4, 1989.

   This is to be followed by the three year special parole under the supervision of the United States Probation and Parole Office.

   
   

5. Petitioner has not been arrested for any other crime or violated any other condition of his release during the period of his parole.

   
   

6. Petitioner testified that he recognized that his involvement in the drug business was a "big mistake" and that his arrest, conviction and imprisonment has convinced him that he will not be involved in this type of activity again.

   
   

7. Petitioner's two character witnesses both testified that they knew him before and after his arrest and conviction. They knew him to be an excellent salesman, hard worker and trustworthy. They believed Petitioner would be an asset to the real estate profession.

   
   

8. Petitioner's application for a Florida real estate salesman's license was filed with the Commission on July 27, 1988. The letter rejecting his application was dated October 31, 1988, which was more than 90 days after the filing of Petition's application. The only other indication of action by the Commission on Petitioner's application, within 90 days of filing, was a hand written entry on Petitioner's finger print card which stated: "Denied 10/19/88." (Respondent's Ex 1) There is no indication in the record that this notation was authorized agency action.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. Petitioner has the burden of proving his eligibility for licensure. Rule 28-6.008(3), Florida Administrative Code; Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

11. Respondent is responsible for granting and denying applications for licenses as a Florida real estate salesman. Section 475.25, Florida Statutes.

    
    

12. One of the grounds for denial of licensure is if the applicant has been convicted or found guilty of a crime that "directly relates to the activities of a licensed ... salesman or involves moral turpitude ..." Section 475.25(1)(f), Florida Statutes.

    
    

13. An applicant must have "good character" in order to be licensed. If the applicant has been guilty of acts that would be grounds for revoking his license, he shall be deemed not to be qualified for licensure unless, "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears ... that the interest of the public and investors will not likely be endangered by the granting of registration." Section 475.17(1)(a), Florida Statutes.

    
    

14. Possession of cocaine with intent to distribute is a crime of moral turpitude, since it constitutes a violation of one's duties in dealings with members of society. Cf. Pearl vs. Florida Board of Real Estate, 394 So.2d 189,191 (Fla. 3d DCA 1981) Petitioner's good behavior as a prisoner and parolee is insufficient to demonstrate rehabilitation. Neither lapse of time nor subsequent good conduct has been sufficient for him to qualify for licensure.

    
    

15. Petitioner has alleged in his Petition Requesting Formal Hearing, paragraph 4, that "(t)here is an issue of material fact as to whether the Commission violated Florida Statutes 120.59(1), and Rule 28-5.405, Florida Administrative Code, in not complying with the ninety (90) day rule, in which it had to either approve or deny Petition's application." Petitioner is correct as to the Commission's obligation to approve or deny his application within 90 days after receipt of his application. However, Petitioner has applied for a real estate salesman's license which is governed by the provisions of Section 120.60(2), Florida Statutes (1987) which provides in pertinent part: "(e)very application for license shall be approved or denied within 90 days after receipt of the original application or receipt of the timely requested additional information or correction of errors or omissions unless a shorter period of time for agency action is provided by law." Rules 28-6.001 and 28-6.005(1), Florida Administrative Code. No competent evidence was presented by Respondent which demonstrated that the Commission timely requested additional information or correction of errors or omissions from Petitioner or any other person or agency, nor is there competent evidence in the record to prove that Petition's application was approved or denied "within 90 days after receipt of the original application..." The uncontroverted evidence showed that Petitioner's application was filed with the Commission on July 25, 1988; and the letter of denial was filed on October 31, 1988 (Respondent's Ex 1). This was 98 days after receipt of the application. The only evidence of agency action prior to that date offered in evidence was a hand written entry on the applicants finger print card which read "Denied 10/19/88." This is insufficient to prove agency action within the time frame of the law. No minutes of a Commission meeting

demonstrating that action on the application was taken nor any other competent evidence was offered to prove that the Commission acted on the application prior to the expiration of 90 days. Therefore, the statute is unequivocal where it states: "Any application for a license which is not approved or denied within the 90 day or shorter time period, ... shall be deemed approved; and, subject to the satisfactory completion of an examination, if required as a prerequisite to licensure, the license shall be issued ..." Section 120.60(2), Florida Statutes (1987).

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered approving Petitioner's application for a real estate salesman's license and permitting him to sit for the real estate examination as provided for in Section 475.175, Florida Statutes (1987).

DONE AND ENTERED this 27th day of March, 1989, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 27th day of March, 1989.

COPIES FURNISHED:

MANUEL E. OLIVER

Assistant Attorney General

Florida Department of legal Affairs

400 West Robinson Street Orlando, Florida 32801

HOWARD MARKS, ESQUIRE

369 North New York Avenue Winter Park, Florida 32790

DARLENE F. KELLER

Division Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32802

KENNETH E. EASLEY

General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

JOHN B. BANG,

Petitioner,

vs. DOAH CASE NO. 88-6011

FLORIDA REAL ESTATE COMMISSION,

Respondent.

/

FINAL ORDER

On April 19, 1989, this case came on to be heard by the Florida Real Estate Commission, upon the Hearing Officer's Recommended Order and Petitioner's and Respondent's Exceptions thereto, all attached hereto as Exhibits A, B, and C and made a part hereof; and the Commission, after argument of counsel and being otherwise fully advised in the premises, and after a review of the complete record and the transcript of the formal hearing held, finds:

1. That Petitioner's Exceptions #1 and #2 to the Hearing Officer's Conclusion of Law stated in Paragraph 14 of the Recommended Order are well taken and should be accepted and adopted as those of the Commission; and that said Conclusion of Law by the Hearing Officer should be rejected, as the Commission concludes that the Petitioner has sufficiently proven his rehabilitation and that three years have elapsed since Petitioner pleaded guilty to the amended charges filed against him.

   
   

2. That Respondent's Exceptions #1 and #2 to the Hearing Officer's Finding of Fact #8 and Conclusion of Law #15 are well taken and should be accepted and adopted by the Commission; and that said Finding of Fact #8 should be rejected as contrary to the evidence in the record (as reflected at Page 50, lines 6 through 10, and at Page 51, lines 4 through 6, of the official transcript of the formal hearing held in this case on March 1, 1989). Therefore, the Commission concludes that agency action was taken within 90 days from the date of the filing of Petitioner's application, pursuant to s. 120.60(z), Florida Statutes; and that notice of the denial was given to Petitioner well within the said 90-

   day period, counting from the date additional information timely requested by the Respondent was received by the agency.

   
   

3. That Petitioner's Exception #3 is to be rejected because, rather than being an exception to the Hearing Officer's Findings and/or Conclusions, it is just an argument in support of the Hearing Officer's Finding of Fact #8 and Conclusion of Law #15.

   
   

4. That the remaining Findings of Fact and Conclusions of Law in the Hearing Officer's Recommended Order, which are not contrary to the Findings and Conclusions made by the Commission at this time, should be accepted and adopted as those of the Commission.

   
   

5. That the Hearing Officer's Recommendation that the Petitioner be permitted to sit for the real estate licensure examination should be accepted.

It is therefore ORDERED:

1. That Petitioner's Exceptions #1 and #2 be accepted and adopted as those of the Commission.

   
   

2. That Petitioner's Exception #3 be rejected.

   
   

3. That Respondent's Exceptions #1 and #2 be accepted and adopted as those of the Commission.

   
   

4. That the Hearing Officer's Finding of Fact #8 and Conclusions of Law #14 and #15 be rejected.

   
   

5. That the remaining Findings of Fact and Conclusions of Law in the Hearing Officer's Recommended Order which are not contrary to the Exceptions accepted and adopted by the Commission, as aforesaid, also be accepted and adopted as those of the Commission.

   
   

6. That Petitioner's application to take the real estate salesman's examination be granted.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 19th day of April, 1989 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Howard S. Marks, Esquire, Graham, Clark et al, Post Office Drawer 1690, Winter Park, Fl 32790; to Hearing Officer Daniel Kilbride, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Fl 32399-1550; and to Manuel E. Oliver, Assistant Attorney General, Suite 212, 400 West Robinson Street, Orlando, Fl 32801, this 28th day of April, of 1989.

Docket for Case No: 88-006011

Orders for Case No: 88-006011