STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, ) JACK KING, REPRESENTATIVE, )

)

Petitioner, )

)

vs. ) CASE NO. 75-1166

)

JOSEPH R. ANDRULONIS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard at 1:00 P.M. on October 15, 1975, at 921 Seybold Building in Miami, Florida, before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Louis B. Guttman, III, Esquire 2699 Lee Road

Winter Park, Florida 32789

For Respondent: Hugh L. Black, Esquire

265 Northeast 26 Terrace Miami, Florida 33137

INTRODUCTION

This case concerns the issue of whether the respondent's registration as a real estate salesman should be revoked for the reason that he does not possess the qualifications of honesty, truthfulness, and good character as required by

1. 475.17(1) and/or for the reason that respondent is guilty of obtaining his registration by means of fraud, misrepresentation or concealment in violation of F.S. 475.25(2).

   
   

   It is the contention of the attorney for the Real Estate Commission that respondent's registration should be revoked on the grounds that respondent did not truthfully answer question number 9 on his application for registration and thus is guilty of violating F.S. 475.17(1) and 475.25(2).

   
   

   It is the respondent's contention that the respondent's answer to question number 9 was a result of misunderstanding and poor judgment, and not done with intent to defraud, misrepresent or conceal and therefore he is not guilty of violating the real estate laws.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent was registered as a Florida real estate salesman on September 9, 1974, and has been continuously registered with the Commission

      since that time. Prior to this time, respondent was registered as a real estate salesman in the State of New Jersey. He has never received any complaints or criticisms with respect to his registrations prior to the present charges.

      
      

   2. On March 25, 1974, respondent submitted his application for registration as a real estate salesman. Question number 9 on said application reads as follows:

      
      

      "9. Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to whether sentence has been passed or served, or whether the verdict or judgment has been reversed or set aside or not, or pardon or parole granted. . ."

      
      

      To this question, the respondent answered "No." (Exhibit No. 1).

      
      

   3. In May of 1962, when respondent was eighteen years of age and a member of the military service, he was involved in a legal proceeding in Geary County, Kansas. His interpretation of the events leading up to such proceeding is that he thought he observed six black men raping a white woman and went over to help the woman. The black men beat him up badly, respondent went back to his car, took his pistol and shot at them. He was apprehended by the military police and spent some time in the stockade and also in the county jail. He later appeared before the Geary County District Court judge in Kansas and was sent to the Kansas State Industrial Reformatory for five to ten years. He was later transferred to the Kansas State Reception and Diagnostic Center at Topeka. He apparently remained at these places for three years and was then permitted to go back to his home state of New Jersey, where he remained on parole for a period of two more years. He was 23 years old when his parole terminated.

      
      

   4. Although formal charging documents were not presented to the hearing officer, a United States Department of Justice document shows that respondent was charged with assault with intent to kill, mayhem and felonious assault. - (Exhibit No. 3).

      
      

   5. When respondent filled out papers to qualify as a real estate salesman in New Jersey, he was informed by the people he worked for in New Jersey that his prior Kansas proceedings were juvenile in nature and that juvenile proceedings were never held against a person and were taken off the records. He assumed the same rationale would apply when he filled out the Florida application.

      
      

   6. He did not talk to anybody in Florida about question number 9, but called his prior New Jersey firm. The President of the New Jersey firm told him that the New Jersey firm would not have spent $16,000.00 or $17,000.00 to relocate respondent if they had thought respondent would have any problem with his registration. Respondent therefore answered question number 9 in the negative.

      
      

      CONCLUSIONS OF LAW

      
      

   7. F.S. 475.25(2) provides that a registration shall be revoked if it is found to have been obtained by the registrant by means of fraud, misrepresentation or concealment. F.S. 475.17(1) is directed toward the

      qualifications of applicants for registration. Among the qualifications are that the applicant show that he is honest, truthful, trustworthy and of good character.

      
      

   8. There is no doubt in this case that the respondent concealed the facts surrounding the events which took place in Kansas. Question number 9 on the application is very broad. It asks whether the applicant has ever been arrested for or charged with the commission of an offense against the laws of any municipality, state or nation including traffic offenses, without regard to the sentence, or reversal or setting aside of a judgment or verdict or granting of a pardon or parole. The applicant certainly is put on notice by by such a question that the Real Estate Commission is seeking information regarding any past offense, whether it be a felony, misdemeanor or an offense which resulted in juvenile or other legal proceedings. It is difficult to understand how respondent could have actually believed that the Commission was not asking about an event which caused respondent to be incarcerated for a period of three years. Had the question asked only for prior "convictions", respondent's explanation would have more weight and credibility. In fact, the word "conviction" was not used, and the words "arrest" and "charged with" are certainly broad enough to put respondent on notice that he should have answered the question in the affirmative. He could then have given the details and any extenuating circumstances in the second part of the same question, which stated "If yes, state details in full".

      
      

   9. Respondent was permitted by the hearing officer to submit into evidence six letters of recommendation from various business associates attesting to his professional ethics and knowledge in the area of real estate. While these letters are impressive, they do not specifically relate to the charges of obtaining registration by means of fraud, misrepresentation or concealment or to showing, at the time of application, that the applicant is honest, truthful, trustworthy and of good character. The facts of this case lead the undersigned to conclude that by falsely answering question number 9 of the application, respondent is guilty of obtaining his registration by means of concealment, fraud or misrepresentation which requires revocation of his registration under

F.S. 475.25(2). Also, in falsely answering this question, it would follow that the applicant failed to exhibit those qualities of honesty and truthfulness required by F.S. 475.17(1).

RECOMMENDATION

Based upon the above findings of fact and conclusions of law, it is recommended that the Real Estate Commission find respondent guilty of violations of F.S. 475.17(1) and F.S. 475.25(2) and that, pursuant to F.S. 475.25(2), respondent's registration as a real estate salesman be revoked. It is further recommended that this revocation be without prejudice to the respondent showing by a future application that, because of lapse of time, rehabilitation, subsequent good conduct and reputation or other reasons, he is qualified to be an applicant for registration.

Respectfully submitted and entered this 12th day of November, 1975, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1975.

COPIES FURNISHED:

Louis B. Guttman, III, Esquire 2699 Lee Road

Winter Park, Florida 32789

Hugh L. Black, Esquire

265 Northeast 26 Terrace Miami, Florida 33137

Docket for Case No: 75-001166

Orders for Case No: 75-001166