STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT MARQUIS LEVY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-813

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Miami, Florida, on August 23, 1978, before the undersigned Hearing Officer.

APPEARANCES

For the Petitioner: Robert Marquis Levy

Appeared in his own behalf

For the Respondent: Manuel E. Oliver, Esquire

Staff Attorney

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32802

ISSUE PRESENTED

Whether Petitioner's application for registration as a real estate salesman should be approved.

Petitioner appeared at the hearing without legal counsel. He was advised of his rights in an administrative proceeding and indicated that he understood the same and desired to represent himself in this proceeding.

FINDINGS OF FACT

1. On February 9, 1978, Petitioner Robert Marquis Levy of Miami Beach, Florida, filed with the Respondent an application for registration as a real estate salesman. In answer to question 6 on the application form concerning prior arrests or charges, Petitioner attached a list of prior arrests and convictions on criminal charges during the period 1970-1977, together with an accompanying explanation. By Order, dated April 10, 1978, Respondent denied the application based on Petitioner's criminal record. Petitioner thereafter requested an administrative hearing. (Respondent's Exhibit 1)

   
   

2. At the hearing, Respondent presented evidence establishing the following criminal convictions of Petitioner:

   1. On September 14, 1971, Petitioner was convicted in the United States District Court for the Eastern District of Pennsylvania, Case No. 71-391, upon his plea of guilty to three counts of the offense of making or causing to be made false, fictitious and fraudulent statements in representations to an agency of the United States of America, in violation of 18 USC, Section 1001. He was sentenced to a suspended prison sentence and placed on probation for a period of five years. However, his probation was revoked in 1974 and he was sentenced to confinement for a period of two years.

      
      

   2. On December 16, 1974, in the United States District Court for the District of Maryland, Docket No. Y-74-0446, Petitioner, on his plea of guilty, was convicted of the offense of bail jumping in violation of 18 USC, Section 3150, and sentenced to imprisonment for a period of one year.

      
      

   3. On September 29, 1975, in the United States District Court for the Northern District of Georgia, Case No. CR 75-51A, upon his plea of guilty, Petitioner was convicted of the offense of transporting and causing to be transported in interstate commerce, a falsely made and altered security, in violation of 18 USC, Section 2314. He was sentenced to imprisonment for a period of two years for this offense.

      
      

   4. On October 5, 1977, in the Circuit Court of Dade County, Florida, based on four 1973 informations on worthless check charges in violation of Section 832.05, Florida Statutes, Petitioner having been placed on probation for such offenses, was ordered to make full restitution in the total amount of

   $1,206.40 to the Fountainbleau Hotel, Jordan Marsh, Burdines, and Peruvian Import and Sales Corporation. (Bill Andrews) (Respondent's Composite Exhibit No. 2)

   
   

3. In addition to the foregoing, Petitioner conceded in his application to a 1970 New Jersey conviction of defrauding innkeeper for which he was fined

   $25.00, and a 1972 Virginia conviction of grand larceny by embezzlement, for which he was sentenced to three years in 1974. (Respondent's Exhibit No. 1)

   
   

4. Petitioner testified at the hearing and submitted numerous documents in support of his testimony concerning good character and reputation in the community. In June 1977, Petitioner was released from federal prison and commenced employment with a Miami Beach television sales and service firm. In July 1978, he became the editor and business manager of the Miami Beach Citizen's News, a monthly news publication. During the period since his release from prison, Petitioner became active in the affairs of the Miami Beach Chamber of Commerce as chairman of various committees and member of the Board of Governors. In this connection, he became involved in a multitude of civic projects, including improved road signs, safe streets program, revitalization of Washington Avenue and Lincoln Road, and other community, civic and charitable activities. (Testimony of Petitioner, Petitioner's Exhibits 1-7)

   
   

5. On February 9, 1978, the State Office of Executive Clemency issued Petitioner a Certificate of Restoration of Civil Rights for all felony convictions in the State of Florida and restoration of civil rights in the State of Florida for any and all felony convictions in other state or federal courts. (Petitioner's Exhibit 8)

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 475.17(1), Florida Statutes, requires an applicant for registration to "make it appear," inter alia, that he is honest, truthful,

   trustworthy, of good character, and that he bears a good reputation for fair dealing. The provision further provides:

   
   

   If it shall be made to appear . . . that the applicant has been guilty of conduct or practices In this state or elsewhere, which would have been grounds for revoking

   or suspending registration under this chapter had the applicant been then registered, the applicant shall be deemed not to be qualified, unless, because of lapse of time and subse- quent good conduct and reputation, or other reason being sufficient it shall appear to

   the commission that the interest of the public and investors will not likely be endangered

   by the granting of registration.

   
   

7. By its Order denying Petitioner's application, Respondent found that as a result of his criminal record he had not made it affirmatively appear that he possessed the necessary qualifications for registration under Section 475.17. Although not cited by Respondent in its Order, the denial was obviously predicated upon the fact that Petitioner's prior convictions involved moral turpitude, fraudulent or dishonest dealing, such as would have been grounds for revocation or suspension of registration had Petitioner then been licensed, pursuant to Subsection 475.25(1)(e), F.S.

   
   

8. An applicant for registration as a real estate salesman thus has the burden of establishing his qualifications for licensing under Section 475.17 and, if his application shows on its face, as here, that he may not possess those required qualities of good character and reputation as a result of prior criminal convictions, he is entitled to have an opportunity to show rehabilitation of character if a reasonable period of time has elapsed for that purpose after completing the terms of any sentence. Karl v. Florida Real Estate Commission, 229 So.2d 610 (Fla. 3rd DCA 1969)

   
   

9. Here, although only little more than a year has elapsed since Petitioner was released from confinement, he has demonstrated that he can live as an employed, law-abiding citizen who has contributed to the betterment of his community in a remarkable manner. His showing of the esteem within which he is now held in the City of Miami Beach is persuasive indeed that he has firmly resolved to avoid involvement in criminal activities in the future.

   
   

10. Aside from Petitioner's affirmative showing of his rehabilitation, this case is further governed by Section 112.011(1)(b), Florida Statutes, which provides that a person whose civil rights have been restored shall not be disqualified to engage in a profession for which a license is required to be issued by the State solely because of a prior conviction for a crime, unless such prior conviction was directly related to the specific profession for which the license is sought. Since the preliminary decision of denial of Petitioner's application by the Respondent was predicated solely upon criminal convictions not involving the real estate profession which were subject of civil rights restoration by the State, denial cannot be justified unless other matters adversely affecting Petitioner's qualifications are shown. Such is not the case here, and it is therefore believed that Petitioner has met his burden to establish qualifications for registration.

RECOMMENDATION

That the application of Petitioner Robert Marquis Levy for registration as a real estate salesman be approved, subject to any further necessary requirements for registration.

DONE and ENTERED this 7th day of September, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

COPIES FURNISHED:

Robert Marquis Levy

10350 West Bay Harbor Drive #2T Miami Beach, Florida 33154

Manuel E. Oliver, Esquire Staff Attorney

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 78-000813

Orders for Case No: 78-000813