on April 7, 1977, at the 3500 Building, 3530 First Avenue North, St. Petersburg, Florida.
By an Order filed on July 23, 1976, the Florida Real Estate Commission denied petitioners application for registration as a real estate salesman, which application was subscribed and sworn to by petitioner on or about April 1, 1976, but which was not filed with the Commission until on or about April 26, 1976.
As grounds for said denial, the Commission concluded that petitioner did not possess the necessary qualifications sufficient for registration under Florida Statutes 475.17 and Florida Statutes s475.18. Specifically, the Commission found that within one year prior to the filing of his application, petitioner had operated, attempted to operate or held himself out as being entitled to operate as a real estate salesman without then being registered as a salesman. To this specific question on his application, petitioner answered "no." The Commission further found that a direct information for" burglary of a conveyance "had been filed against petitioner in the Circuit Court of Hillsborough County on April 21, 1976. To the question on the application of whether the applicant had ever been arrested or charged with the commission of an offense, petitioner answered "no".
Petitioner was advised of his right under Florida Statutes s120.60 to request a hearing and did so. The respondent Commission requested the
appointment of a Hearing Officer from the Division of Administrative Hearings, and the undersigned was designated to conduct the hearing.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner O'Brien has never been registered with respondent as a real estate salesman. He has applied for registration on three occasions, taking the exam each time, failing it twice and passing it the third time. After taking the examination the second time, he felt that he had not passed. He therefore prepared another application on or about April 1, 1976, and held it until he received his second test results. When he was advised that he had failed the exam, he then, on about April 23, 1976, mailed his application to the Commission, which was received and filed on or about April 26, 1976.
One of the questions on petitioner's application read as follows: "16. Have you, in this state, operated,
attempted to operate, or held yourself out as being entitled to operate, as a real estate salesman or broker, within one year next prior to the filing of this application without then being the holder of a valid current registration certificate authorizing you to do so?"
Petitioner answered this question "no."
For approximately a year and a half prior to April,
1976, petitioner was employed with Capital Rentals and Realty, Inc. in its offices in Orlando, and branch offices in Tampa, Clearwater and St. Petersburg. From early March of 1976, petitioner was in charge of the opening of the St.
Petersburg branch office. As a part of its services, Capital Rentals and Realty, Inc. provides a rental referral and listing service to those persons desiring to lease rental property. Capital maintained a book of listings containing information on available rental property. The listings were obtained by calling private owners and Realtors who listed property for lease in the newspapers. No charge was made to the lessors to include their property in Capital's listing book. For a fee of $30.00 or $40.00, Capital's customers were entitled to use Capital's listing books for a period of one year. Each customer was required to fill out a form stating the type of dwelling he desired and listing the maximum rent and number of bedrooms preferred.
Petitioner was responsible for the bookkeeping at the St. Petersburg branch office. As a part of his duties, he contacted the owners or lessors of property to inquire whether they desired to list their home in Capital's listing book, and he collected fees from potential lessees. He was informed by his supervisor, Lawrence Van Ore, a registered real estate broker and the active firm member of Capital, that there was a fine line involved between being licensed and working in the rental referral business, but that he did not need to be licensed. During the period of time in question, petitioner also attended real estate classes in preparation for the exam. Petitioner remained with Capital until October of 1976.
On March 30, 1976, Gary Peters, a police officer with the St. Petersburg Police Department, arrested petitioner O'Brien, charging him with burglary and arson. On April 21, 1976, a direct information was filed in the Circuit Court of Hillsborough County charging petitioner with burglary of a conveyance. On September 28, 1976, the State Attorney's office in Tampa nolle prossed the case against petitioner. (Exhibits 1 and C)
One of the questions on petitioner's application for registration (which application was prepared and sworn to by petitioner on April 1, l976, mailed on or about April 23rd and received by the Commission on April 26th) read as follows:
"6. 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, (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled?"
Petitioner answered this question "no."
CONCLUSIONS OF LAW
Florida Statutes s475.O1(2) lists certain activities for which a person engaged therein will be deemed and held to be a "real estate salesman" under the Florida Real Estate License Law. Among those activities are taking part, for another and for a compensation or valuable consideration, in the procuring of lessors or lessees of real property when such results, or is calculated to result, in a sale, exchange or lease thereof. Clearly, petitioner's duties of employment with Capital Rentals and Realty, Inc. fit within this range of activities and he therefore is deemed and held to be a "real estate salesman" under Florida Statutes s475.01. Florida Statutes s475.18 provides that no application for registration shall be granted if it appears that the applicant has acted, or attempted to act, or has held himself out as entitled to act, as a real estate salesman during the period of one year prior to the filing of said application. Thus, this action alone clearly justifies and, in fact, mandates the Commission's denial of petitioner's application for registration.
Petitioner's explanation that his employer, a registered real estate broker, informed him that he did not need to be registered as a salesman carries no weight. Petitioner testified that the same employer also told him that there was a "fine line" between what he was doing and those activities for which registration was required. This should have put him on notice to make the proper inquiries. Also, petitioner attended real estate classes in preparation for his exams and should therefore have been familiar with the Florida real estate license law. Florida Statutes s475.17 provides that an applicant is required to make it clear that he is honest, truthful, trustworthy and of good character. By answering the questions relating to arrests or charges for offenses and operating as a salesman without a valid registration certificate in the negative, petitioner has failed to clearly illustrate that he is honest, truthful, trustworthy or of good character. The evidence demonstrates that petitioner was arrested on March 30, 1976, and an information was filed against him on April 21, 1976 for an offense against the laws of this State. Yet, on a sworn application mailed on April 23, 1976, he denied having been arrested for or charged with the commission of any offense. This constitutes sufficient
