STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DWAINE EUGENE SPANN, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1189

) Progress Docket 3369 FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings on October 9, 1978, beginning at 1:30 p.m., in hearing room number 37, 3rd Floor, South Wing, Courthouse, 2000 Main Street, Sarasota, Florida.

APPEARANCES

For Petitioner: No appearance.

For Respondent: Manuel E. Oliver, Esquire

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32801 ISSUE

Whether the application of the Petitioner for registration as a real estate salesman should have been granted.

FINDING OF FACT

1. Petitioner made an application for registration as a real estate salesman to the Florida Real Estate Commission on or about December 30, 1977.

   
   

2. The Florida Real Estate Commission in its "Order", denied the application for registration on June 13, 1978, but notified him that if he desired he had the option to request a hearing and present evidence to make it affirmatively appear that he is qualified for registration as a real estate salesman with the Florida Real Estate Commission and that he meets the requisite qualifications. Petitioner requested the subject hearing but did not appear.

   
   

3. The Hearing Officer received into evidence the application for registration filed by the Petitioner; received on December 30, 1977; his application for registration received on September 19, 1977; and certified copies of the four charges, counts and arrest records discovered by the Commission but not disclosed by the Petitioner; a xerox copy of the Petitioner's Manatee Junior College record showing that he had on January 8, 1975, completed

   56 hours of work with a 1.82 college average; a letter dated February 2, 1976

   from Marvin E. Silverman, Circuit Judge, recommending that Dwaine E. Spann, the Petitioner, have his civil rights restored; a letter dated February 27, 1976, signed by Robert L. Clark, Assistant Public Defender, recommending that the Petitioner be granted the restoration of his civil rights; and a certification of restoration of civil rights issued by Alice S. Ragsdale, Coordinator of the Office of Executive Clemency, on September 10, 1976.

   
   

4. Question number "6" of the application of December 30, 1977, reads as follows:

   
   

   "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 viola- tions), without regard to whether convicted, sentenced, pardoned or paroled?"

   
   

   The applicant answered this question: "Yes."

   
   

   The question continued in the following manner: "If yes, state details including the outcome in full:"

   
   

   The applicant answered as follows: "Details attached to previous application, served three years sentence in Florida prison system for possession of marijuana. Breaking and entering to commit a misdemeanor ran concurrently."

   
   

   The applicant, on a previous application on September 19, 1977, in answer to the same question number "6", had thereon stated: "Yes. . ."

   
   

   "Details attached, served three years sentence in Florida prison system for possession of marijuana, breaking and entering to commit a misdemeanor ran concurrently." Attached to his application were copies of the judgment.

   
   

5. The applicant did not disclose that he had also been:

   
   

   1. Arrested, on or about November 19, 1967, by the Cocoa Beach Police Department for using improper mufflers, and fined $15 for said violation.

      
      

   2. Arrested, on or about February 14, 1968, by the Cocoa Beach Police Department on a charge of Petit Larceny for which he was found guilty and sentenced to a $100 or 10 days in jail.

      
      

   3. Arrested, on or about May 2, 1968, by the Cocoa Beach Police Department of a charge of Breaking and Entering, and fined $150.

   4. Charged with and adjudged guilty of Petit Larceny in Case No. 74-1628MM, in Sarasota County, Florida, and sentenced to 30 days imprisonment.

      
      

6. There was no evidence to show why the Petitioner failed to reveal to the Respondent the existence of the charges against him on November 19, 1967, February 14, 1968, May 2, 1968, or the adjudication of guilty of Petit Larceny in Case No. 74-1628MM in Sarasota County, Florida. It is also unknown whether Judge Silverman or Mr. Clark of the Public Defender's Office knew of these earlier convictions prior to their letters to recommend that the Petitioner's civil rights be restored subsequent to his conviction on marijuana and misdemeanor charges.

   
   

   CONCLUSIONS OF LAW

   
   

7. Section 475.17, Florida Statutes--Qualifications of Applications for Registration.-- and Section 475.18, Florida Statutes,--Proceedings Upon Application for Registration.-- charge the Respondent Commission, among other things, with testing applicants for registration as real estate salesmen or brokers for minimum competency and also charges the Commission with the responsibility of determining whether an Applicant has the necessary qualifications of character and fitness to faithfully serve the public.

   
   

8. Petitioner failed on both applications to reveal that he had been charged with, arrested for, and convicted of crimes involving Petit Larceny and breaking and entering. Both the applications were subsequent to the crime of possession of marijuana and breaking and entering, for which he acknowledged he had served a three year term in the Florida prison system but had thereafter been restored his civil rights. Independent investigation of the Commission revealed the former arrests. Both applications were sworn statements and indicate that all of the answers are true and correct and are as complete as his knowledge and information and records permit, without any evasion or mental reservations whatsoever. In failing to disclose these convictions the Respondent failed to demonstrate that he is honest, truthful, trustworthy, of good character, and that he bears a good reputation for fair dealing, or that he is qualified to make real estate transactions and conduct negotiations with safety to investors and to those with whom he may undertake a relationship of trust and confidence.

RECOMMENDATION

Deny the application of Petitioner for Registration as a salesman for the Florida Real Estate Commission.

DONE and ENTERED this 6th day of December, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building

MAIL: 530 Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Manuel E. Oliver, Esquire Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Dwaine Eugene Spann Route 2, Box 376S Sarasota, Florida 33582

Docket for Case No: 78-001189

Orders for Case No: 78-001189