STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT BOYLESTON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5800

)

FLORIDA REAL ESTATE )

COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on June 3, 1993.

APPEARANCES

For Petitioner: Karen Emmanuel, Esquire

EMMANUEL, SHEPPARD AND CONGDON

30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596

For Respondent: Steve Fieldman, Esquire

Office of the Attorney General Suite 107 South

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Respondent should accept Petitioner's application for licensure as a real estate salesman.

PRELIMINARY STATEMENT

By letter dated September 28, 1992, Respondent, the Florida Real Estate Commission, informed Petitioner, Robert Boyleston, that it was denying his application for licensure as a real estate salesman. The denial was based on Petitioner's responses to questions 7 and 15 of the licensing application which, the Board alleges, demonstrates Petitioner is not a person who is honest, truthful, trustworthy, and of good character, with a reputation for fair dealing. Petitioner disagreed with Respondent's denial and requested a formal administrative hearing. Respondent's request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and offered the testimony of six witnesses. Petitioner did not introduce any exhibits into

evidence. Respondent did not call any witnesses but introduced seven exhibits into evidence. Additionally, Respondent offered into evidence an eighth exhibit, consisting of two police reports. The police reports were marked for identification as FREC Exhibit 8, but were not admitted into evidence.

After the hearing, Petitioner and Respondent submitted their Proposed Recommended Orders on July 22, 1993, and July 26, 1993, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the evidence or were immaterial, cumulative or subordinate.

Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On June 8, 1992, Petitioner, Robert Boyleston filed an application for licensure as a real estate salesman.

   
   

2. Question 7 of the application inquired as to whether Petitioner had been convicted or found guilty of any crime, or entered a plea of guilty or nolo cotendere to any crime.

   
   

3. The Petitioner responded in the affirmative to Question 7 of the application and reported that he had been arrested on two felony counts of sexual battery involving Petitioner's twelve and fourteen year old stepdaughters to which he, pursuant to a plea agreement, pled nolo contendere to two counts of solicitation for sexual activity, a felony. On February, 21, 1989, Petitioner was sentenced to two years of community control followed by eight years probation, court costs, costs of supervision, Alcoholics Anonymous treatment, and payment of therapy bills for the mother and his two stepdaughters. Adjudication of guilt was withheld. Petitioner also reported that on November 15, 1989, he was convicted of three technical violations of his community control because he failed to stay at his approved residence on three separate occasions. The Petitioner pled nolo contendere to the violation of probation charges. At Petitioner's sentencing on his violation of probation the Petitioner offered mitigating circumstances which had caused his absences from his approved residence. Additionally, Petitioner's probation officer recommended that the Petitioner remain on community control and not be incarcerated for the violation of probation. However, the Court found Petitioner guilty of violating his community control. Petitioner's community control was terminated, adjudication of guilt was imposed on the two counts of solicitation and he was sentenced to eighteen months in the state corrections system followed by eight years probation with costs and treatment as originally imposed.

   
   

4. Question 15(a) of the application inquired as to whether "any license, registration or permit to practice any regulated profession, occupation or vocation of the applicant had been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation upon grounds of fraudulent or dishonest dealing or violations of law, or was any proceeding now pending." The Petitioner answered in the affirmative to Question 15(a) of the application and reported that on March 5, 1991, his real estate license had been revoked by FREC for the convictions referenced above, the violation of his community control, imprisonment and failing to timely report his convictions and violation to FREC.

5. Petitioner did not notify the Real Estate Commission of his plea of no contest because he was unaware of the requirement of notification where adjudication has been withheld. After Petitioner's conviction and imprisonment in November, 1989, the Petitioner did not think about notifying FREC because he understandably had other things on his mind and did not realize that the late- imposed conviction and imprisonment might trigger the notification requirement of Chapter 475, Florida Statutes. Consequently, no notification was given to the Florida Real Estate Commission until some five months later, in April, 1990, when Petitioner's father, Robert E. Boyleston, notified the Florida Real Estate Commission of his sons conviction and imprisonment. The oversight was not deliberate and was remedied. Given these facts and the other facts of this case, the former charge of failure to notify for which Petitioner has already been punished should not disqualify should not disqualify Petitioner from becoming a real estate salesman.

   
   

6. The Petitioner is 38 years old and has a high school graduate equivalency diploma. He is a graduate of the Missouri Auction School. Since 1978, Petitioner has worked with his family's auction business, Louis Boyleston Realty and Auction, Inc. The Petitioner is currently a licensed and bonded auctioneer in good standing, and has never had any disciplinary actions taken against him by the Board of Auctioneers.

   
   

7. Petitioner obtained a real estate license in 1979. Prior to the revocation of his real estate license in 1991, Petitioner auctioned both real and personal property, solicitated business for the family business, and booked auctions involving real and personal property. However, since the Petitioner's real estate license was revoked in 1991, Petitioner cannot deal in the sale or auction of real property and has only engaged in the auctioning of personnel property.

   
   

8. In 1988, Petitioner admits that he was partying much too heavily and led a lifestyle that generally involved the abuse of alcohol and drugs. Put simply, Petitioner was out-of-control. Unfortunately, Petitioner had to experience a life shattering event to get his attention focused on the inappropriateness of his lifestyle, attitude and behavior. In short, Petitioner had his eyes forcefully opened when he ran into trouble with the law and committed the crimes described in his application and at the hearing.

   
   

9. Now however, Petitioner realizes that his behavior in 1988 and early 1989 prior to his plea, was out-of-control and that he was clearly on the wrong path. Petitioner freely admits that his behavior towards his stepdaughters was wrong and deeply regrets the hurt he inflicted on them and their mother.

   
   

10. Since his nolo contendere plea, the Petitioner participated in extensive counseling with social workers, psychologists and psychiatrists at the Lakeview Center in Pensacola, Florida. He attended approximately six months of counseling sessions prior to his imprisonment, and approximately eighteen to nineteen months of counselling after his imprisonment. This counseling was on a weekly basis during the entire period. Through counseling, Petitioner has come to recognize his crimes and his faults, to understand that his previous lifestyle is not how he wants to live his life, to go back and reconstruct his life and, through what he has learned in counseling, to begin practicing a better way of life.

    
    

11. The Petitioner is a recovering alcoholic and has been actively involved in Alcoholics Anonymous for over five years. Petitioner's sobriety date is around July 14, 1989. The sobriety date is important in Alcoholics Anonymous

    because it marks the time when an alcoholic stops drinking takes personal responsibility for his or herself and begins slowly and gradually to change his or her life. Through Alcoholics Anonymous, the Petitioner has been able to see his faults, and to start living the solution. For him, Alcoholics Anonymous was a spiritual awakening and has become a way of life. Since his involvement in AA, he has served as cochairman and chairman for the Institutions Committee, which supervises 52 treatment and correctional facilities for Santa Rosa and Escambia Counties. In his role as cochairman and chairman over those facilities, he is responsible for organizing and insuring AA coverage at weekly treatment meetings. Petitioner's ongoing participation in AA is currently voluntary since he has met the mandatory court

    of his criminal sentence.

    
    

12. The Petitioner currently works with approximately ten AA members on a personal basis, helping them to try and reconstruct their lives in what is called "sponsorship" in the AA program, in the same way that he was able to receive similar benefits previously. In short, Petitioner is a true believer in the AA philosophy and has dedicated a good part of his life to helping others with addiction/spiritual problems.

    
    

13. The Petitioner admits that his rehabilitation and recovery from addiction are an ongoing process. The admission is part of the AA philosophy as well as the philosophy of any addiction treatment program. However, Petitioner has also learned that he can continue to be a better person each and every day, living his life on a spiritual basis.

    
    

14. Other than the investigation that resulted in the revocation of his real estate license in 1991, Petitioner has not had any other disciplinary actions involving the Real Estate Commission. Other than the convictions that resulted in the revocation of his license, Petitioner has had no other criminal convictions, arrests or prosecutions. Based on the evidence at the hearing and Petitioner's very real and sincere turnaround in his life there is no doubt that the Petitioner is now an honest and trustworthy person of high moral character. Relapse appears unlikely. Therefore, Petitioner is entitled to once again try for a real estate license and Petitioner's application should be accepted by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 475.17, Florida Statutes, is the section governing application for licensure. Section 475.17 states in part:

    
    

    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 safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license . . .

    or his registration or license to practice or conduct any regulated profession, business or vocation has been revoked or suspended, by this or any other state . . . because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant has been guilty of conduct or practices in this state or elsewhere 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 (emphasis supplied).

    * * *

    
    

17. Petitioner has the burden of demonstrating by a preponderance of the evidence that he is entitled to apply for licensure as a real estate salesman.

    
    

18. In this case, the evidence demonstrated that Petitioner is entitled to apply for a real estate license. The factors which weigh in favor of issuing a license to Petitioner include the length of time that has passed since the original criminal actions, the extensive counseling and rehabilitation which the Petitioner has actively and extensively participated in for the past five years, and other evidence of record demonstrating Petitioner's honesty, integrity and commitment to competent service in the auctioneer profession and the real estate profession throughout his entire career.

    
    

19. In sum, the Petitioner's considerable and successful efforts to rehabilitate himself, through extensive counseling, to continue to provide capable and professional services in his family's auction business, and his genuine effort to improve himself, justifies providing him an opportunity to be licensed as a real estate salesperson in the State of Florida, despite his previous conviction and his failure to report the same to the Real Estate Commission. There has been no evidence presented to show any deficiencies or shortcomings in the Petitioner's professional judgment, previous practice as a real estate salesperson, nor any other evidence from which one could infer that the Petitioner is not competent and qualified to make real estate transactions and conduct negotiations for clients with the safety of investors and others with whom he may have a fiduciary relationship in mind.

    
    

20. Considering all of the evidence presented, the offenses committed by the Petitioner, which occurred approximately five years ago, and which have been followed by many years of exemplary behavior, do not constitute such serious misconduct as to render the Petitioner unqualified for licensure. To the contrary, the evidence shows the Petitioner to be a truthful and trustworthy man of integrity and professionalism.

    
    

21. In this case, Petitioner has demonstrated that he is entitled to make such an application. Therefore Petitioner's application should be accepted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That Petitioner's application for real estate licensure should be accepted.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October 1993.

DIANE CLEAVINGER

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 12th day of October, 1993.

APPENDIX TO CASE NUMBER 92-5800

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14 and 22 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.

2. The facts contained in paragraphs 10, 15, 16, 17, 18, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate.

3. The facts contained in paragraphs 15(d), 16 and 17 of Respondent's Proposed Findings of Fact were not shown by the evidence.

4. The facts contained in paragraphs 1, 2, 3, 4, 5, 6 and 7 of Respondent's Proposed Findings of Fact are adopted.

5. The facts contained in paragraphs 8, 9, 10, 11, 13, 14, 15(a)-(c), 16(b), 16(d)-(h) of Petitioner's Proposed Findings of Fact are subordinate.

6. The facts contained in paragraph 12 of Respondent's Proposed Findings of Fact are subordinate except those relating to the alleged inconsistency in the testimony which were not shown by the evidence.

7. The facts contained in paragraph 15(d) of Respondent's Proposed Findings of Fact are adopted except those relating to the character of the testimony which were not shown by the evidence.

8. The facts contained in paragraph 16(c) of Respondent's Proposed Findings of Fact are subordinate except those relating to the alleged inconsistency in the testimony which were not shown by the evidence.

COPIES FURNISHED:

Karen Emmanuel, Esquire EMMANUEL, SHEPPARD AND CONGDON

30 South Spring Street Post Office Drawer 1271 Pensacola, Florida 32596

Steve Fieldman, Esquire

Office of the Attorney General Suite 107 South

400 West Robinson Street Orlando, Florida 32801

Darlene F. Keller Division of Real Estate

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

Jack McRay

Acting General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

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: 92-005800

Orders for Case No: 92-005800