STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZACHA MASUD ANAZCO )

)

Petitioner, )

)

vs. ) CASE NO. 89-6251

)

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on February 16, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Paul A. Sack, Esquire

5975 Sunset Drive, Suite 701 South Miami, Florida 33134

For Respondent: Manuel E. Oliver, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212

Orlando, Florida 32801 STATEMENT OF THE ISSUES

The issue for determination at the formal hearing was whether Petitioner was properly denied registration to take the state examination as a real estate salesman (hereinafter "licensure").

PRELIMINARY STATEMENT

Petitioner's application for licensure as a real estate salesman was denied by the Florida Real Estate Commission on

October 18, 1989. Petitioner requested a formal hearing on October 24, 1989. The matter was referred to the Division of Administrative Hearings on November 8, 1989, for assignment of a hearing officer, and assigned to the undersigned on November 21, 1989. The formal hearing was scheduled for February 9, 1990, pursuant to a Notice of Hearing issued on December 14, 1989. The formal hearing was rescheduled for February 16, 1990, to accommodate the trial calendar of counsel for Petitioner.

At the formal hearing, Petitioner testified in his own behalf and offered one exhibit which was admitted in evidence without objection. Respondent called

no witnesses and offered three exhibits that were stipulated to by the parties and admitted in evidence.

A transcript was ordered and filed with the undersigned on February 23, 1990. Proposed findings of fact and conclusions of law were timely filed by Petitioner on March 16, 1990, and by Respondent on March 7, 1990. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner filed his application for licensure as a real estate salesman on February 23, 1989. Question number 7 of the application asked Petitioner whether he had ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. Petitioner answered Question number 7 affirmatively. Respondent presented no evidence of any other basis for its refusal of Petitioner's licensure.

   
   

2. Petitioner entered a no-contest plea to a charge of credit card forgery, uttering a forged instrument (credit card), fraudulent use of a credit card, and petit theft involving an incident in December, 1987. Adjudication was withheld and Petitioner was placed on probation for 18 months on February 16, 1988. One of the conditions of probation was that Petitioner would neither possess, carry, nor own any weapon or firearm without the Probation Supervisor's consent.

   
   

3. Petitioner's probation was revoked on May 4, 1988. Petitioner was found guilty of being in possession of a firearm, on or about April 28, 1988, without his Probation Supervisor's consent. Petitioner was placed on one year Community Control. Petitioner has no convictions or arrests prior to or subsequent to the original offense and revocation of probation.

   
   

4. The uncontroverted evidence established that subsequent to the revocation of his probation, Petitioner consistently demonstrated good conduct and reputation. Petitioner was released from probation eight months in advance of schedule pursuant to the recommendation of his Probation Supervisor. Petitioner worked during the day, attended a review course for his real estate salesman examination at night, and successfully completed the review course.

   
   

5. The uncontroverted evidence further established Petitioner's subsequent good conduct and reputation during his employment over the past year as a furniture salesman for a national furniture store. Petitioner has been instrumental in handling all of the business bank deposits and payroll. Petitioner has been responsible for opening and closing the store and has been entrusted with all keys and alarm combinations. During his employment, Petitioner has demonstrated honesty, diligence, and trustworthiness. Finally, the uncontroverted evidence established that Petitioner has a reputation for trustworthiness and good character with his Probation Supervisor and among social, civic, and business leaders. See Respondent's Composite Exhibit 1.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

7. Petitioner has the burden of proof in this proceeding and must demonstrate by a preponderance of the evidence that he is entitled to the relief requested. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

8. Subsection 475.17(1) (a), Florida Statutes, provides inter alia that:

   
   

   An applicant for licensure who is a natural person must be. honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing... (and) must be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relationship of trust and confidence.

   
   

9. Petitioner established by a preponderance of evidence his compliance with the quoted requirements of Subsection 475.17(1) (a), including Petitioner's good reputation with his employer, his Probation Supervisor, and others.

   
   

10. Subsection 475.17(1) (a), Florida Statutes, further provides in relevant part that:

    
    

    [I]f the applicant has been guilty of conduct or practice in this

    state. . .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....

    
    

11. Subsection 475.25(1)(f), Florida Statutes, provides inter alia that:

    
    

    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.

       
       

12. There is no disputed issue of law or fact that Petitioner's original offense was a crime involving fraudulent or dishonest dealing within the meaning

    of Subsection 475.25(1)(f), Florida Statutes. The issue for determination is whether 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 in accordance with Subsection 475.17(1) (a), Florida Statutes.

    
    

13. The uncontroverted evidence in this proceeding demonstrates that the interest of the public and investors will not likely be endangered by the granting of Petitioner's application for licensure as a real estate salesman. Over two years have elapsed since Petitioner's criminal offense, at which time Petitioner was 19 years old. Two months later, Petitioner was found guilty of violating his probation. Since that time, Petitioner has consistently demonstrated subsequent good conduct and reputation within the meaning of Subsection 475.17(1) (a), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure as a real estate salesman be accepted.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of April 1990.

DANIEL MANRY

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 17th day of April 1990.

APPENDIX TO RECOMMENDED ORDER CASE NO. 89-6251

Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been

generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 and 2 Accepted in finding 1

3 and 4 Accepted in finding 2

1. and 7 Accepted in part in finding 3 Remainder rejected as immaterial.

2. Accepted in finding 4

1. Accepted in findings 4 and 5

2. Accepted in finding 5

3. Accepted in finding 1

Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been

generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No reference is made to unnumbered paragraphs.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 and 2 Accepted in finding 1

3 and 4 Accepted in finding 2

1. Accepted in finding 3

2. Included in Preliminary Statement

3. Rejected as immaterial

COPIES FURNISHED:

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

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

Kenneth E. Easley General Counsel

1940 North Monroe Street Tallahassee, Florida 32399-0792

Manuel Oliver

Assistant Attorney General Office of the Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

Paul A. Sack, Esquire

Glendale Federal Building, Suite 630 2121 Ponce de Leon Boulevard

Coral Gables, Florida 33134

Docket for Case No: 89-006251

Orders for Case No: 89-006251