STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN C. STEIN, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0283

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 30, 1991, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: No appearance

For Respondent: Manuel E. Oliver, Esquire

Department of Legal Affairs

400 West Robinson Street Suite S107

Orlando, Florida 32801 STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner is entitled to licensure as a real estate salesman in the state of Florida.

PRELIMINARY STATEMENT

At a duly noticed meeting conducted on December 5, 1990, the Florida Real Estate Commission denied an application filed by the Petitioner, Stephen C. Stein, for licensure as a real estate salesman in the State of Florida. The Petitioner timely requested a hearing on the matter pursuant to Chapter 120, Florida Statutes. The case was referred to the Division of Administrative Hearings which noticed and conducted a hearing.

By Re-Notice of Hearing issued by Hearing Officer William J. Kendrick on March 26, 1991, the hearing in this matter was scheduled for April 30, 1991, in Miami, Florida, beginning at 10:00 a.m. That Re-Notice was sent to Petitioner at the address listed in his application and was not returned as undeliverable. Several days prior to the hearing, Hearing Officer Kendrick spoke with the Petitioner by phone and reconfirmed the date and time of the hearing. Counsel for the Respondent had also contacted Petitioner approximately one week before the hearing at which time the Petitioner indicated that he was aware of the time, date and location of the scheduled hearing.

Prior to the commencement of the hearing, the case was transferred to the undersigned Hearing Officer who appeared at the scheduled time and place.

Counsel for the Respondent was also present at the time and place set forth in the Re-Notice of Hearing. Petitioner did not appear at the scheduled time and place. Petitioner had not contacted either counsel for the Respondent or the Division of Administrative Hearings to request a continuance of the hearing.

After waiting approximately 25 minutes, the hearing was commenced and Respondent requested an opportunity to submit certain evidence in support of the Commission's denial of Petitioner's application. Respondent did not call any witnesses, but offered eight exhibits into evidence, all of which were accepted.

A transcript of the proceedings has been filed. At the hearing, Respondent waived its right to file a proposed recommended order. No post-hearing submittals have been received from the Petitioner.

FINDINGS OF FACT

1. On August 21, 1990, the Petitioner submitted an application for licensure as a real estate salesman in the state of Florida.

   
   

2. Item 7 of the licensure application form required the applicant to answer the following question: "Have you 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 responded yes to that question. The application form provided that "If you answered 'YES,' please state the details including dates and outcome in full. (Use separate sheet if necessary)." The only response provided by Petitioner was "1970 found guilty shooting a firearm in a dwelling - served 28 months Avon Park and work release."

   
   

3. In fact, Petitioner has been arrested and/or convicted on several other occasions that were not listed on his application.

   
   

4. On October 19, 1964, the Petitioner was found guilty of breaking and entering an automobile, petit larceny, and carrying a concealed weapon in Case 64-755 in the Criminal Court of Record in and for Dade County, Florida. Petitioner was placed on probation for a period of one year in connection with that case.

   
   

5. On August 13, 1975, the Petitioner entered a plea of guilty to a charge of unlawfully and feloniously breaking and entering a dwelling with the intent to commit a felony therein, to-wit: grand larceny. The court suspended imposition of sentence, withheld adjudication of guilt and placed the Petitioner on probation for a term of five years. This case was Case Number 75-5081 in the Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County.

   
   

6. On June 18, 1976, the Petitioner entered a plea of guilty to robbery, shooting into an occupied dwelling, and unlawful possession of a firearm while engaged in a criminal offense. Petitioner was sentenced to five years in the state penitentiary. The case was Case No. 76-3328 in the Circuit of the Eleventh Judicial Circuit of Florida in and for Dade County. Apparently, this was the case the Petitioner was referring to in the disclosure set forth in his Application. However, the application lists the date of conviction as 1970 and the offense actually took place in 1976.

   
   

7. As a result of the Petitioner's conviction in Case No. 76-3328, his probation in Case No. 75-5081 was violated and Petitioner was ordered to serve

   two years in the state penitentiary to run concurrently with the sentence in Case No. 76-3328. The violation of probation order was entered on June 18, 1976.

   
   

8. In an Information dated April 26, 1982, the Petitioner was charged with disorderly conduct and two counts of resisting an officer without violence. The charges were assigned Case No. 82-61725 in the County Court for Dade County, Florida. Petitioner was found guilty of the two charges of resisting arrest without violence and was fined on June 21, 1982.

   
   

9. On February 22, 1988, the Petitioner entered a plea of Nolo Contendere to the offense of battery on a law enforcement officer in Case No. CR-87-6784 in the Circuit Court of Orange County, Florida. On February 24, 1988, the court entered an order withholding adjudication and placing Petitioner on probation for two years.

   
   

10. On November 29, 1988, the Petitioner entered a plea of guilty to two counts of grand theft in the third degree in Case Nos. 88-21122 and 88-21123 in the Circuit Court for the Eleventh Circuit in and for Dade County, Florida. The Petitioner was ordered to serve one day imprisonment as a result of those convictions.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The Petitioner failed to present any evidence. Therefore, he has failed to carry his burden of proof in this proceeding. Florida Department of Transporatation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Moreover, the evidence presented in this case demonstrates the Respondent's actions were justified.

    
    

13. Pursuant to Section 475.181, Florida Statutes, the Florida Real Esate Commission (the "Commission") is authorized to certify for licensure to the Department of Professional Regulations any applicant who satisfies the requirements of Sections 475.17 and 475.175. Under Section 475.17(1)(a), an applicant for licensure must be honest, truthful, trustworthy and of good character. Petitioner's failure to disclose all of his prior arrests and criminal cases indicates that he is not honest and truthful and, therefore, the Commission was justified in refusing to certify him for licensure.

    
    

14. Under Section 475.25(1)(f), the Commission can deny an application for licensure if the applicant has been convicted or found guilty, regardless of adjudication, of a crime involving fraudulent or dishonest dealing. Applying that statute to the facts in this case, Petitioner's convictions for robbery and for grand theft constitutes further grounds for denying him licensure.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Real Estate Commission enter a final order denying the Petitioner's application for licensure as a real estate salesman in the State of Florida.

RECOMMENDED in Tallahassee, Leon County, Florida, this 16th day of May 1991.

J. STEPHEN MENTON 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 16th day of May 1991.

COPIES FURNISHED:

Mr. Stephen C. Stein

2515 Northeast 208th Terrace North Miami Beach, Florida 33160

Manuel E. Oliver, Esquire Department of Legal Affairs

400 West Robinson Street Suite S107

Orlando, Florida 32801

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Darlene F. Keller Division Director Division of Real Estate

Department of Professional Regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 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: 91-000283

Orders for Case No: 91-000283