STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK P. HARDIN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3180

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on August 29, 1989, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jack P. Hardin, pro se

722 Fernwood Drive

West Palm Beach, Florida 32801

For Respondent: Manuel E. Oliver

Assistant Attorney General Suite 212, 400 West Robinson

Orlando, Florida 33405 STATEMENT OF THE ISSUES

The issue is whether Petitioner's application for licensure as a real estate salesman in the State of Florida should be granted.

PRELIMINARY STATEMENT

On February 20, 1989, Respondent received Petitioner's application for licensure as a real estate salesman. In response to a question requiring disclosure of prior violations of law, Petitioner disclosed certain prior violations but failed to disclose other violations which subsequently came to Respondent's attention. Respondent denied Petitioner's application based on the violations of law that were disclosed, on the violations of law that were not disclosed, and on Petitioner's failure to disclose all violations. Petitioner timely requested a formal hearing following the denial and this proceeding resulted.

At the final hearing Petitioner testified on his own behalf, but he called no other witnesses and introduced no documentary evidence. Respondent called no witnesses. Respondent introduced one composite exhibit which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The Respondent's proposed findings have been addressed in the appendix to this recommended order. Petitioner filed no post-hearing submission.

FINDINGS OF FACT

1. Petitioner is a regulatory agency of the State of Florida charged with the responsibility of investigating and processing applications for licensure of real estate salesmen in the State of Florida.

   
   

2. On February 20, 1989, Petitioner filed an application with Respondent seeking licensure in the State of Florida as a real estate salesman.

   
   

3. Question 7 of the application form required Petitioner to disclose whether he had ever been convicted of a crime, had been found guilty of a crime, or had entered a plea of guilty or nolo contendere to a crime. The question explicitly applied to any violation of the laws of any municipality, county, state or nation, including traffic offenses (except parking, speeding, inspection, or traffic signal violations), without regard to whether the applicant had been placed on probation, had had adjudication withheld, had been paroled, or had been pardoned.

   
   

4. Petitioner disclosed the following violations of law in his handwritten response to Question 7:

   
   

   1. In 1985, attempted possession of cocaine less than 1 gram for which he received 60 days probation;

      
      

   2. In 1985, disorderly intoxication for which he received three months probation;

      
      

   3. In 1985, speeding for which he received a fine;

      
      

   4. In 1985, vandalism for which no disposition was shown;

      
      

   5. In 1986, violation of probation for which no disposition was shown,

      and

      
      

   6. In 1986, possession of a stolen automobile tag for which he

      received two years probation.

      
      

5. Petitioner failed to disclose the following violations of law in his response to question 7:

   
   

   1. In 1977, sexual battery for which he was placed on five years probation;

      
      

   2. In 1980, violation of probation; and

      
      

   3. In 1980, driving under the influence of alcohol for which he received six months probation and a fine of $100.

6. Petitioner knew that he had committed the undisclosed offenses and he knew that he had not listed the undisclosed offenses in response to question 7. Petitioner could not justify his failure to list the undisclosed violations in his response to question 7.

   
   

7. Respondent's denial of Petitioner's application was based on the violations of law disclosed by Petitioner, on the violations of law Petitioner failed to disclose, and on the failure of Petitioner to disclose violations of law. Following the denial of his application, Petitioner timely requested a formal hearing. This proceeding followed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Section 475.17, Florida Statutes, provides, in pertinent part, as follows:

   
   

   (1)(a) An applicant for licensure who is a natural person must ... be honest, truthful, trustworthy, and of good character ...

   
   

10. Section 475.25, Florida Statutes, provides, in pertinent part, as follows:

    
    

    (1) 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 ... involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph.

    
    

11. In State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (Fla. 1933) the Supreme Court of Florida discussed moral turpitude in the following terms:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted) It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error or judgment when wrong was not contemplated.

12. "Moral turpitude" is defined by Black's Law Dictionary (rev. 4th Ed. 1968) as follows:

    
    

    An act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.

    
    

13. Respondent established that Petitioner had entered a plea of nolo contendere to sexual battery, a crime which involves moral turpitude within the meaning of Section 475.25(1)(f), Florida Statutes. Moreover, Respondent established that Petitioner had been placed on probation for possession of a stolen automobile tag, a crime which involves dishonest dealings within the meaning of Section 475.25(1)(f), Florida Statutes.

    
    

14. In Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977) the court discussed the meaning of moral character as follows:

    
    

    Moral character ... means not only the ability to distinguish between right and wrong, but the character to observe the difference; the observance of the rules of right conduct, and conduct which indicates and establishes the qualities generally acceptable to the populace for positions of trust and confidence.

    
    

15. In Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla. 1987), the court discussed the meaning of good moral character as follows:

    
    

    In our view, a finding of a lack of "good moral character" should not be restricted to those acts that reflect moral turpitude. A more appropriate definition of the phrase requires an inclusion of acts and conduct which would cause a reasonable man to have substantial doubts about an individual's honesty, fairness, and respect for the rights of others and for the laws of the state and nation.

    
    

16. Respondent established that Petitioner did not honestly or truthfully complete his application for licensure. That failure and the violations of law by Petitioner justify the denial of his license on the grounds that he failed to establish that he possessed the qualifications for licensure required by Section 475.17, Florida Statutes.

    
    

17. Petitioner has the burden of proving by a preponderance of the evidence that he is entitled to the relief he seeks. Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has failed to meet that burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Florida Real

Estate Commission, enter a final order which denies Petitioner's application for licensure as a real estate salesman in the State of Florida.

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

CLAUDE B. ARRINGTON

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

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

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-3180

The following rulings are made on the proposed findings of fact contained in the Proposed Recommended Order submitted by Respondent:

1. The proposed findings of fact of paragraphs 1-3 are accepted.

2. The proposed findings of fact of paragraph 4 that the charge of sexual battery was reduced to attempted sexual battery is rejected because there was no evidence that the charge was reduced. The remaining proposed findings of fact in paragraph 4 are accepted.

3. The proposed findings in paragraph 5 are rejected as being recitation of testimony and as being subordinate to the findings made in paragraph 6 of the Recommended Order.

4. The proposed findings of paragraph 6 are accepted as part of the Preliminary Statement of the Recommended Order, but they are rejected as findings of fact as being unnecessary to the result reached.

COPIES FURNISHED:

Jack P. Hardin

722 Fernwood Drive

West Palm Beach, Florida 32801

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

Orlando, Florida 33405

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Darlene F. Keller, Division Director Department of Professional Regulation Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Docket for Case No: 89-003180

Orders for Case No: 89-003180