STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

MARK E. SMITH, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3258

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 10, 1991, in Naples, Florida.

APPEARANCES

For Petitioner: Mark E. Smith, pro se

1001 North Barfield Drive, A-503 Marco Island, Florida 33937

For Respondent: Joselyn M. Price, Esquire

Room 212, 400 West Robinson Street

Orlando, Florida 32801 STATEMENT OF THE ISSUES

The issue is whether petitioner's application for licensure as a real estate salesman should be granted.

PRELIMINARY STATEMENT

By application filed on November 15, 1990, petitioner, Mark E. Smith, sought licensure as a real estate salesman. On May 21, 1991, respondent, Florida Real Estate Commission, advised petitioner that his application had been denied based upon his "answer to Question #7 and/or (his) criminal record".

Thereafter, petitioner requested a formal hearing under Subsection 120.57(1), Florida Statutes (1989) to contest the agency's decision. The matter was referred by respondent to the Division of Administrative Hearings on May 24, 1991, with a request that a hearing officer be assigned to conduct a hearing.

By notice of hearing dated June 13, 1991, a final hearing was scheduled on July 10, 1991, in Naples, Florida. At final hearing, petitioner testified on his own behalf and offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent offered respondent's composite exhibit A which was received in evidence. Finally, at the outset of the hearing, respondent's counsel clarified the agency's basis for denial and stated that such denial was

based on two driving while intoxicated convictions suffered by Smith, one in 1983 and the other in 1988.

The transcript of hearing was filed on August 1, 1991. The parties were given until August 12, 1991, in which to file proposed findings of fact and conclusions of law. None were filed.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. By application filed on November 5, 1990, with respondent, Florida Real Estate Commission (Commission), petitioner, Mark E. Smith, sought licensure as a real estate salesman. In response to question seven on the application, which asked whether the applicant had ever been convicted of a crime, found guilty, or entered a plea of nolo contendere, even if adjudication was withheld, petitioner answered in the affirmative. As is relevant to this proceeding, respondent acknowledged that he had been convicted of driving while intoxicated (DUI) in December 1983 in St. Lucie County, Florida and again in March 1988 in Juanita County, Pennsylvania. 1/ After reviewing the application, respondent issued proposed agency action in the form of a letter on May 21, 1991, denying the application because of petitioner's "answer to Question #7 of the licensing application and/or your criminal record". The denial prompted petitioner to request a formal hearing.

   
   

2. Smith, who just turned thirty six years of age, admitted that he once had a drinking problem which resulted in the two arrests. However, after his 1988 DUI arrest and conviction in Pennsylvania, Smith attended a twenty-eight day rehabilitation program in that state and thereafter received six months of out-patient counseling. He now regularly attends alcoholic anonymous meetings. Thus, to the extent a DUI can serve as the basis for denying an application, there has been a sufficient lapse of time since the convictions and subsequent good conduct on petitioner's part to demonstrate rehabilitation.

   
   

3. Smith is presently employed by the marketing department of Sunrise Bay Resort and Club Condominium, a time sharing resort in Marco Island, Florida. His duties are to solicit prospective customers to visit the resort and hear a sales presentation. Smith desires a real estate license so that he can become

   involved in the sale of real estate, and if licensed, he intends to work for his present employer. His assertions that (a) he is simply attempting to better himself and (b) he poses no threat to society or the real estate profession, while self-serving to some degree, were not contradicted. Moreover, they are corroborated by a letter received in evidence as petitioner's exhibit 3.

   Finally, Smith's application file reflects that he was previously licensed in Florida as a real estate salesman from September 1983 until March 1985. There is no evidence that he was disciplined by the Commission during that period of time. Thus, it is found that Smith possesses the necessary attributes for licensure as a salesman.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

5. As the applicant seeking a license, Smith bears the burden of showing entitlement to licensure. Fla. Department of Transportation vs. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

   
   

6. According to the letter of denial, as clarified by counsel at hearing, Smith was disqualified for licensure on the ground he failed to comply with the provisions of Subsection 475.17(1), Florida Statutes (1989). That subsection provides in pertinent part as follows:

   
   

   1. (a) An applicant for licensure . . . shall be . . . honest, truthful, trustworthy, and of good character and shall have a reputation for fair dealing . . . If the applicant has been guilty of conduct or practices which would have been grounds for revoking or suspending his license under this chapter had the applicant 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.

      
      

      Under this statute, two requirements arise. First, Smith must demonstrate he has the attributes of honesty, truthfulness, trustworthiness, good character and a reputation for fair dealing. Secondly, if the two arrests for DUI in 1983 and 1988 had been grounds for revoking or suspending his license had he then been registered, Smith must show there has been a "lapse of time", "subsequent good conduct and reputation" or "other good reason" to warrant granting registration. In other words, the applicant has the burden of proving he has rehabilitated himself since the illicit conduct occurred, assuming such conduct would have been a ground for revoking or suspending his license had he then been registered. Aquino vs. Department of Professional Regulation, Board of Real Estate, 430 So.2d 598 (Fla. 4th DCA 1983); Antel vs. Department of Professional Regulation, Florida Real Estate Commission, 522 So.2d 1056 (Fla. 5th DCA 1988).

      
      

7. Respondent has not cited any authority for the proposition that a DUI arrest and conviction, or even two over a six year period, would be a ground for suspending or revoking a real estate license. Indeed, Subsection 475.25(1)(f), Florida Statutes (1989), comes closest to constituting authority for this proposition but it refers only to the commission of "crimes" by a licensee which relate directly to the activities of a licensed broker or involve moral turpitude or fraudulent or dishonest dealing. Since the agency has relied only upon the two DUI convictions as a ground for denying licensure, it is concluded that this portion of subsection 475.17 is not relevant. Even if the arrests raise doubt as to Smith's conduct and reputation, there has been a sufficient lapse of time and subsequent good conduct and reputation to satisfy the statute.

   
   

8. By a preponderance of the evidence, petitioner has demonstrated, without contradiction, that he possesses the attributes of honesty, trustworthiness, truthfulness and good character. Therefore, the application should be granted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Mark E. Smith for licensure as a real

estate salesman be GRANTED.

DONE and ENTERED this 16th day of August, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1991.

ENDNOTES

1/ Petitioner also acknowledged on the application that he had been arrested on June 20, 1990, in Indian Harbour Beach for possession of less than 20 grams of marijuana, a misdemeanor. However, in accordance with counsel's representation at hearing, after the Commission learned that the charge was dismissed, it did not consider this arrest as a ground for denying the application.

COPIES FURNISHED:

Joselyn M. Price, Esquire

400 West Robinson Street, Suite 212 Orlando, FL 32801

Mr. Mark E. Smith

1001 North Barfield Drive, Room A-503 Marco Island, FL 33937

Darlene F. Keller, Director Division of Real Estate

P. O. Box 1900 Orlando, FL 32802

Jack L. McRay, Esquire

1940 North Monroe Street, Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

MARK E. SMITH

Petitioner

vs. DOAH CASE NO.: 91-3258

FLORIDA REAL ESTATE COMMISSION

Respondent

/

FINAL ORDER

On October 16, 1991, the Florida Real Estate Commission heard this case to issue a Final Order. After hearing argument of counsel for the Respondent, and being otherwise fully advised in the premises, the Commission enters this Final Order as follows:

The Honorable Donald R. Alexander, a Hearing Officer of the Division of Administrative Hearings, presided over a formal hearing held on July 10, 1991, under the provisions of Chapter 120, Florida Statutes. On August 16, 1991, he issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

On September 9, 1991, Respondent filed Exceptions to the Hearing Officer's Recommended Order and the Findings of Fact and Conclusions of Law upon which said Order was based. A copy of said Exceptions is attached hereto as Exhibit

13 and made a part hereof.

After a complete review of the record, the Commission adopts those parts of the Hearing Officer's Findings of Fact and Conclusions of Law, which are not contrary and opposed to the Exceptions filed by the Respondent and accepted by the Commission. However, the Commission states, with particularity, that:

1. It accepts Paragraphs 1-5 of Respondent's Exceptions to the Hearing Officer's Recommended Order.

Further, the Commission rejects the Hearing Officer's Recommendation.

IT IS THEREFORE ORDERED that Petitioner's application for a real estate license be, and the same is hereby, denied.

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 to 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 North, 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 16th day of October 1991 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: Mark D. Smith, 1001 North Barfield Drive, #A-503, Marco Island, FL 33937; to Hearing Officer Donald R. Alexander, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Joselyn M. Price, Assistant Attorney General, Suite 107 South, 400 West Robinson Street, Orlando, FL 32801, this 3rd day of October 1991.

Director

Docket for Case No: 91-003258

Orders for Case No: 91-003258