STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEAN ALAN BURTON, )

)

Petitioner, )

)

vs. ) CASE NO. 96-2634

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 26, 1996, a formal administrative hearing was held in this case in Dade City, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dean Alan Burton

10098 Dunkirk Road

Spring Hill, Florida 34608

For Respondent: William N. Halpern

Assistant Attorney General South Tower, Suite 107

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner is qualified for licensure as a real estate salesperson.

PRELIMINARY STATEMENT

On or about November 8, 1995, Petitioner, Dean Alan Burton, applied for licensure as a real estate salesperson. The application for licensure was denied by Respondent, the Florida Real Estate Commission, by Order dated April 25, 1996. Petitioner challenged the denial and timely requested a formal hearing. By letter dated May 28, 1996, the matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge, and this proceeding followed.

At the formal hearing, Petitioner testified on his own behalf and had Exhibits One through Four admitted into evidence. Respondent presented no witnesses but offered and had Exhibits One through Four admitted into evidence.

A transcript of the proceeding was filed on October 7, 1996. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript, thereby waiving the time constraint imposed by Rule 28-5.402, Florida Administrative Code, for

issuance of the recommended order. See Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their proposed recommended orders under the extended time frame.

FINDINGS OF FACT

1. On or about November 8, 1995, Petitioner filed an application for licensure as a real estate salesperson.

   
   

2. Question 9 of the application asked about the applicant's criminal history. In response to this question, Petitioner answered in the affirmative and stated the following:

   
   

   On May 24, 1995 I pleaded guilty to a misdemeanor offense, possession of a forged instrument in the third degree... .

   
   

3. Question 13 of the application inquired as to whether the applicant had ever resigned from a regulated profession. Petitioner answered this question in the affirmative and stated:

   
   

   On October 6, 1995, as a condition of my sentence in the criminal matter...I executed an Affidavit of Resignation from the Bar of the State of New York.

   
   

4. Petitioner testified at hearing that the incident giving rise to misdemeanor offense to which he pleaded guilty involved a divorce matter he was handling for a client. While practicing law in the State of New York, Petitioner was retained to handle what he initially believed was an uncontested divorce. When it became apparent that the divorce was being contested, Petitioner attempted to withdraw from the case, but at the client's insistence never did so.

   
   

5. During the ensuing months, the divorce matter was not resolved by Petitioner. Nevertheless, after being repeatedly contacted by the client regarding the status of the case, Petitioner gave the client what purported to be a copy of his divorce decree. According to Petitioner, he conformed the document and knew no decree had been signed. The conformed document was never filed with the court. Petitioner's actions led his client to believe that the client was divorced when, in fact, he was not divorced.

   
   

6. Petitioner was forthright in revealing his conviction and resignation from the New York Bar and acknowledged that his action was "a terrible mistake in judgment." While he admitted "there's no excuse for what I did," Petitioner attributed the incident to the stress in his life at the time caused by a myriad of circumstances. Among these circumstances was the illness and subsequent death of Petitioner's only law partner in his two-attorney law practice.

   Because of this, Petitioner's caseload increased significantly causing him to feel "overwhelmed." During this time period, Petitioner was also dealing with family problems related to the serious health problems of his parents.

   
   

7. Petitioner pled guilty to a misdemeanor offense, possession of a forged instrument, and was convicted of the same. As a result thereof, on October 6, 1995, Petitioner was sentenced to three years probation. At the time of this hearing, Petitioner had served less than one year of his probationary period. Petitioner's probation will expire on October 5, 1998.

8. At hearing, Petitioner presented numerous letters from family, friends, and business associates attesting to his good character. However, all the letters are based on these individuals' experiences and relationships with Petitioner prior to his October 1995 conviction.

   
   

9. Petitioner appears remorseful about his prior conduct and has a sincere desire to be rehabilitated. However, Petitioner presented no evidence regarding his present character as reflected by his good conduct and reputation. Absent from the record is testimony from friends, relatives, business associates, employers, or church members regarding Petitioner's honesty, truthfulness, or trustworthiness subsequent to the date he pled guilty to possession of a forged instrument.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. The Respondent is authorized to certify for licensure as a real estate salesperson, any applicant who satisfies the requirements of Section 475.17, Florida Statutes, and other applicable statutory provisions. Section 475.181, Florida Statutes.

    
    

12. Petitioner has the burden of proving by a preponderance of the evidence that he qualifies for the licensure he seeks. Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

13. Section 475.17 (1) (a), Florida Statutes, pertains to the licensure of real estate professionals in the State of Florida, and provides in pertinent part the following:

    
    

    (1)(a) [An applicant for licensure who is a natural person must be. . . honest, truthful, trustworthy, and of good moral character;

    and have a good reputation for fair dealing.] An applicant for an active broker's or salesperson's license 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. [If the applicant has been] denied registration or has been disbarred], or his registration or license to practice

    or conduct any regulated profession, business, or vocation has been revoked or suspended... [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 a lapse of time

    and subsequent good conduct and reputation, or other good 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 the registration. [Emphasis supplied.]

    
    

14. Section 475.25, Florida Statutes, authorizes the Commission to deny an application for licensure, and to suspend, revoke, or otherwise discipline a real estate broker's or salesperson's license if the applicant or licensee:

    
    

    (f) Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any

    jurisdiction which...involves moral turpitude or fraudulent or dishonest dealing.

    * * *

    (s) Has had a registration suspended, revoked, or otherwise acted against in any jurisdiction.

    
    

15. According to Section 475.17(1), Florida Statutes, an applicant for licensure must be honest, truthful, trustworthy, and of good character and have a good reputation for fair dealing. Furthermore, if the applicant has been disbarred or has committed an act which would be grounds for disciplining his license if he had been registered, there must be a lapse of time and subsequent good conduct and reputation, or other good reason deemed sufficient in order to be eligible for licensure.

    
    

16. Pursuant to the terms of Section 475.25, Florida Statutes, cited above, the Commission may deny a person's application for licensure or suspend, revoke, or otherwise discipline the license of a licensee if such individual has been convicted of crime involving moral turpitude or fraudulent or dishonest dealing. Moreover, denial of an application or disciplinary action against a license is authorized when an individual has had a registration revoked, suspended or otherwise disciplined in another jurisdiction.

    
    

17. It is uncontroverted that Petitioner pled guilty to a misdemeanor count of possession of a forged instrument and was convicted of the same. This crime involves moral turpitude and fraudulent and dishonest dealings within the meaning of Section 475.25(1)(f), Florida Statutes.

    
    

18. Petitioner's resignation from the New York State Bar is tantamount to having a registration "otherwise acted against" within the meaning of Section 475.25(1)(s), Florida Statutes. Clearly, Petitioner resigned from the New York Bar in order to avoid being disbarred, suspended, or otherwise disciplined.

    
    

19. Based on Petitioner's disbarment and his conviction of a crime involving moral turpitude and fraudulent and dishonest dealings, Respondent has established a valid basis for denial of Petitioner's application.

    
    

20. Petitioner's conviction of a crime involving moral turpitude and fraudulent and dishonest dealings and his resignation from the New York State Bar are not necessarily a permanent bar to his licensure as a real estate salesperson. Rather, these actions triggered the statutory presumption that Petitioner is not qualified for licensure as a real estate salesperson. Notwithstanding this presumption, Petitioner may establish that he meets the qualifications for licensure.

21. In order to establish that he meets the licensure requirements for a real estate salesperson, Petitioner must show that the interest of the public and investors will not be endangered by granting the license. To prove this, Petitioner must demonstrate that "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient," he poses no threat to the public and investors. See Section 475.17 (1) (a), Florida Statutes.

    
    

22. To meet his burden, Petitioner must show more than a desire to be rehabilitated and must present evidence of good conduct and reputation subsequent to the time he was convicted of the crime. A mere recitation of the facts and circumstances surrounding the crime is insufficient to meet the required burden of proof.

    
    

23. In Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So.2d 1056 (Fla. 5th DCA 1988), Antel applied for a real estate license shortly after being released from prison. The application was denied because the crime for which Antel was convicted involved moral turpitude and the hearing officer found that there was insufficient evidence of the applicant's rehabilitation. In affirming the Commission's denial, the court found that the applicant "presented nothing more than the facts of the crime itself, and a scant employment history since her release on parole-barely more than a year prior to the hearing." Antel, at 1057. The court held that:

    
    

    ...In view of the short period of time since Antel's release from prison, and the scant record presented at hearing, we cannot find that the Commission erred in finding Antel failed to establish her rehabilitation and right to be licensed... Antel, at 1058.

    
    

24. In the instant case, the record is not merely scant, but completely void of any evidence or testimony of subsequent good conduct and reputation of Petitioner. Similarly, there is no evidence in the record regarding Petitioner's employment record or other activities subsequent to his conviction and disbarment. The evidence presented by Petitioner was insufficient to show that he is honest, truthful, trustworthy, of good character, or that he has a good reputation for fair dealing. Therefore, Petitioner failed to demonstrate that he meets the qualifications for licensure established in Section 475.17 (1)(a), Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order

denying Petitioner's application for licensure as a real estate salesperson.

DONE and ENTERED this 10th day of December, 1996, in Tallahassee, Leon County, Florida.

CARLOYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-647

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1996.

COPIES FURNISHED:

Dean Alan Burton 10098 Dunkirk Road

Spring Hill, Florida 34608

William N. Halpern Assistant Attorney General South Tower, Suite 107

400 West Robinson Street Orlando, Florida 32801

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Henry M. Solares Division Director Division of Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002634

Orders for Case No: 96-002634