STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES L. CRAIG, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 90-7184

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on February 7, 1991, in Ft. Lauderdale, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: James L. Craig, Jr.

R.R.-1, Box 1585

Bronson, Florida 32621

For Respondent: Manuel Oliver, Esquire

Assistant Attorney General

400 West Robinson Street Suite 107-South

Orlando, Florida 32801 STATEMENT OF THE ISSUE

The issue in this case is whether James L. Craig, Jr. (Petitioner) is qualified for licensure by the Florida Real Estate Commission (Respondent).

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified on his own behalf and introduced one exhibit. The Respondent introduced one exhibit.

The transcript of the final hearing was filed on February 19, 1991, and thereafter, the parties were allowed ten days within which to file proposed recommended orders. A ruling on each proposed finding of fact included in the parties' proposed recommended orders is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about June 11, 1990, the Petitioner's application for licensure as a real estate salesman was received by the Respondent. In response to question 7 on the application, the Petitioner stated that he had been convicted of passing worthless checks in Indiana in 1972 (2 times), 1975, 1977, 1981,

   1982, 1983, 1987 (3 times), and 1988. Criminal history records obtained from the F.B.I confirm the Petitioner's admission, with the exception of any charge in 1981, which was dismissed by the State of Indiana.

   
   

2. Based upon the information reflected in response to question 7 on his application, the Respondent denied Petitioner's application for licensure at its meeting on August 22, 1990, and thereafter, the Petitioner timely sought review of this denial.

   
   

3. At hearing, the Petitioner admitted that he had been convicted of repeatedly passing worthless checks in Indiana from 1972 to 1988. He urged, however, that these incidents resulted from difficulties he was having in his personal business, that he had openly revealed these matters on his application, and he had not had any similar occurrences since he moved to Florida in approximately March, 1990. Therefore, it is the Petitioner's position that these matters should not disqualify him for licensure. The Petitioner has not sought expungement of these convictions in Indiana.

   
   

4. The Petitioner was licensed in the State of Indiana as a real estate saleman on or about February 15, 1989, and there is no evidence in the record of any license disciplinary action involving the Petitioner in Indiana during the approximately 12 months he resided in Indiana following his licensure.

   
   

5. The Petitioner did not offer competent substantial evidence which would establish his honesty, trustworthiness and good character, particularly in view of his admitted history of repeatedly passing worthless checks. The Petitioner did not show that he has established any ties in the community, or that he has any regular means of employment. He has recently moved from south Florida to Bronson, Florida, and testified, without any specific detail, that he is engaged in some form of general construction. All purported character references are in the form of unsworn letters, which cannot be considered since they clearly constitute unsupported hearsay. There is no indication from the Petitioner's testimony at hearing that he realizes the seriousness of his offenses, and the direct impact which these offenses have on his qualification to be licensed as a real estate salesman in Florida.

   
   

6. Based upon the foregoing, it is found that the Respondent properly determined that the Petitioner is not qualified to be licensed as a real estate saleman in the State of Florida.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. Section 475.17(1), Florida Statutes, requires applicants for a real estate saleman's license to be "honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing." Section 475.25(1)(b) and (f), Florida Statutes, specifically provides that an applicant may be denied licensure if he has previously been found guilty of misrepresentation, dishonest dealing, a breach of trust in any business dealing in this state or any other state, or been convicted of any crime involving moral turpitude, or fraudulent or dishonest dealing. For purposes of this statutory provision, a plea of nolo contendere is considered a conviction.

9. Since this is a case in which Petitioner is seeking to establish his qualification for licensure as a real estate salesman, the Petitioner has the burden of establishing his qualifications by a preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Specifically, an applicant who seeks to establish that the initial review of his application was incorrect, must show that the agency's initial decision was arbitrary or capricious. Harac v. Department of Professional Regulation, 484 So.2d 1333, 1338 (Fla. 3rd DCA 1986); State ex rel. Glaser v. J.M. Pepper, 155 So.2d 383 (Fla. 1st DCA 1963). In Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978), relevant terms were defined as follows:

   
   

   A capricious action is one which is taken without thought or reason or irrationally.

   An arbitrary decision is one not supported

   by facts or logic, or despotic. Administrative discretion must be reasoned and based on competent substantial evidence. Competent substantial evidence has been described as

   such evidence as a reasonable person would accept as adequate to support a conclusion.

   
   

10. Petitioner challenges the Respondent's determination that he fails to meet the requirements of honesty, trustworthiness, truthfulness, good character, and a good reputation for fair dealing. Yet, it is uncontroverted that the Petitioner has been repeatedly convicted of passing worthless checks as recently as three times in 1987, and once in 1988. Since moving from Indiana to Florida in approximately March, 1990, the Petitioner has not established himself in any community or engaged in any regular means of emplyoment. At hearing, he did not offer competent substantial character evidence or evidence of rehabilitation.

It is, therefore, concluded that there is no basis in the record of this proceeding for finding that the Respondent's review of the Petitioner's application, and denial thereof, was incorrect, arbitrary or capricious. Zemour, Inc. v. Division of Beverage, 347 So.2d 1102, 1105 (Fla. 1st DCA 1977); Florida Board of Bar Examiners v. G.W.L., 364 So.2d 454, 458 (Fla. 1987).

RECOMMENDATION

Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's challenge to the determination that he is not qualified for licensure as a real estate salesman.

RECOMMENDED this 14th day of March 1991 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 14th day of March 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7184

The Petitioner submitted a narrative letter summarizing the evidence presented at hearing. Specific rulings cannot be made to the unnumbered paragraphs contained in his letter since they mix proposed facts with proposed conclusions of law, but Petitioner's letter has been considered in the preparation of this Recommended Order.

Rulings on the Respondent's Proposed Findings of Fact:

1-2. Adopted in Finding 1.

1. Rejected as unnecessary.

2. Adopted in Finding 3.

3. Adopted in Findings 3 and 5.

4. Adopted in Finding 4, but otherwise Rejected as unnecessary.

COPIES FURNISHED:

James L. Craig, Jr.

R.R.-1, Box 1585

Bronson, FL 32621

Manuel Oliver, Esquire Assistant Attorney General

400 West Robinson Street Suite 107-South

Orlando, FL 32801

Jack McRay, Esquire Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Darlene F. Keller Division Director Division of Real Estate

400 West Robinson Street

P. O. Box 1900 Orlando, FL 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 90-007184

Orders for Case No: 90-007184