STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA REAL ESTATE COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1431

)

KENNETH STEVEN KRAMER, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard in the Small Conference Room, Holy Cross Hospital, 4725

1. Federal Highway, Fort Lauderdale, Florida on October 18, 1978, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

   
   

   This case was presented on an Administrative Complaint filed by the Florida Real Estate Commission against the Respondent, Kramer, alleging that Kramer had violated the provision of Section 475.25(2) by having obtained his registration by means of fraud, misrepresentation, or concealment, by failing to report on his application that he had been arrested for possession of marijuana, a dangerous substance.

   
   

   The Florida Real Estate Commission presented evidence of Kramer's arrest and Kramer presented evidence concerning the circumstances surrounding his arrest

   
   

   ISSUE

   
   

   The issue is whether Kramer is guilty of violation of Section 474.25(2), Florida Statutes.

   
   

   APPEARANCES

   
   

   For Petitioner: Tina Hipple, Esquire

   Florida Real Estate Commission

   400 West Robinson Avenue Orlando, Florida 32802

   
   

   For Respondent: Kenneth Steven Kramer appeared pro se

   901 Northeast 23rd Court Pompano Beach, Florida 33064

   
   

   FINDINGS OF FACT

   
   

   1. Kenneth Stephen Kramer is a licensed real estate salesman holding License No. 0193029 issued by the Florida Real Estate Commission.

      
      

   2. Kramer filed an application for registration as a real estate salesman, dated November 21, 1977. In answer to paragraph 6, Kramer stated "Yes," and

      attached a letter of explanation from Michael Brodsky, attorney at law. Brodsky's letter dealt with Kramer's arrest for robbery in Opa Locka, Florida, and the subsequent dismissal of the charges against him on the basis of misidentification by the complaining witness. See Exhibit 2.

      
      

   3. An arrest report from Orangeburg, New York, was introduced as Exhibit

   4. This arrest report shows that Kenneth Stephen Kramer was arrested in Orangeburg for possession of marijuana.

      
      

      1. Kramer testified concerning his arrest in Orangeburg. His testimony was substantiated by that of his sister and his wife. Their testimony was uncontroverted that Kramer had been arrested together with his sister and wife and tow other males in Orangeburg for the possession of marijuana. On the basis of the representations of their court appointed counsel, they plead guilty to the charges against them with the understanding that they would receive three- years probation at the end of which their records would be expunged. They successfully served their probations and were advised by the probation officer in the State of Florida that their records would be expunged. Kramer stated that this was the reason he had not reported his arrest because he felt that his record had been expunged upon the satisfactory completion of his probation as was represented by his court appointed counsel and Florida probation officer.

         
         

         CONCLUSIONS OF LAW

         
         

      2. Kramer is charged with violation of Section 475.25(2), Florida Statutes, with having obtained his registration as a real estate salesman by fraud, misrepresentation, or concealment.

         
         

      3. The facts in this case reveal that Kramer did report an arrest in Florida in which the charges against him were dismissed. Kramer stated that he did not report his arrest for possession of marijuana in New York on the basis that he had been advised that his record had been expunged. It is noted that no record of his conviction was presented, only the record of his arrest in New York. No evidence of the nature or severity of the offense for which he was arrested was introduced. No determination can be made as to whether Kramer was arrested for a felony or misdemeanor.

         
         

      4. The Florida Real Estate Commission has charged Kramer with violation of Section 475.25(2), Florida Statutes, asserting that Kramer obtained his registration by fraud, misrepresentation, or concealment. It is inherent in such a charge that had the Florida Real Estate Commission known of Kramer's arrest, it would have had grounds for denial of his license or more thorough investigation into Kramer's background. Arrest fro mere possession of marijuana is not a crime involving moral turpitude. The evidence shows that Kramer successfully completed his probation and the inclusion of the letter concerning a subsequent arrest and dismissal of the charges against Kramer shows that he relied upon the representations that his record would be expunged.

         
         

      5. It is the legislative intent in providing laws under which an individual's record may be expunged upon the satisfactory completion of his probation that the arrest and conviction should not subsequently interfere with the individual's ability to obtain employment. Florida Statutes specifically provide that the conviction of an individual shall not be a disqualification to his licensure unless the offense of which he was convicted is related to the nature of the activities which the applicant seeks to engage in under the license. Therefore, the offense to which Kramer plead guilty would not be a disqualification to his licensure.

      6. The Florida Real Estate Commission argues that Kramer's failure to report his arrest evidences a poor character. There are circumstances under which such an inference could be drawn; however, in the instant case, Kramer's report of his arrest at Opa Locka, and his statement that he did not report the New York arrest because he had been advised that it had been expunged, overcomes that inference.

         
         

      7. Based upon the facts presented, it has not been shown that Kramer concealed his arrest to obtain his registration. There is no evidence presented to support a conclusion that Kramer violated Section 475.25(2), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Florida Real Estate Commission take no action against the registration of Kenneth Steven Kramer.

DONE AND ORDERED this 27th day of October, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Kenneth Steven Kramer 901 Northeast 23rd Court

Pompano Beach, Florida 33064

Tina Hipple, Esquire

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32802

================================================================= AGENCY FINAL ORDER

================================================================= FLORIDA REAL ESTATE COMMISSION

FLORIDA REAL ESTATE COMMISSION,

Plaintiff,

vs. PROGRESS DOCKET NO. 3372

BROWARD COUNTY

KENNETH STEVEN KRAMER, DOAH NO. 78-1431

Defendant.

/

FINAL ORDER

At a regular meeting of the Florida Real Estate Commission held at the Executive Headquarters in Orlando, Florida, on November 29, 1978,

Present: Levie D. Smith, Jr., Chairman

Arthur N. Hamel, Vice Chairman Virginia H. Bishop, Member Garth C. Reeves, Jr., Member

Appearances: Tina Hipple, Attorney for Plaintiff

Kenneth Steven Kramer, Defendant in Pro Per

This matter came on for final order upon the Hearing Officer's Recommended Order and the Plaintiff's Exceptions thereto, and upon consideration thereof, together with a review of the complete record, and oral argument of counsel for the plaintiff and statements made by the defendant in person, and the Commission being fully advised in the premises, finds:

1.

According to the records of the Commission the last address the Defendant Kenneth Steven Kramer has registered with the Commission is a non-active salesman, 901 Northeast 23rd Court, Pompano Beach, Florida 33064.

2.

The Plaintiff's Exceptions to the Hearing Officer's Recommended Order are well taken and should be sustained.

3.

That the Hearing Officer's Findings of Fact are supported by competent, substantial evidence in the record and should be adopted as the Findings of Fact of the Commission.

4.

That the Hearing Officer's Conclusions of Law and recommendation that no action be taken against the registration of the Defendant are not well taken and should be rejected.

IT IS THEREFORE ORDERED:

1. That the Plaintiff's Exceptions to the Hearing Officer's Recommended Order be, and the same are hereby, sustained.

   
   

2. That the Hearing Officer's Findings of Fact be, and the same are hereby, adopted as the Findings of Fact of the Commission.

   
   

3. That the Hearing Officer's Conclusions of Law and recommendation that no action be taken against the registration of the Defendant be, and they are hereby rejected.

   
   

4. That the Defendant Kenneth Steven Kramer be, and he is hereby, adjudged guilty of having violated Subsection 475.25(2), Florida Statutes, as charged in the Administrative Complaint.

   
   

5. That for such violation the registration of the Defendant be, and the same is hereby, revoked; said revocation to become effective upon the effective date of this Order as provided by law.

   
   

6. That the Defendant shall immediately surrender his certificate of registration to the Florida Real Estate Commission Executive Headquarters in Orlando, Florida, by return mail.

   
   

7. Due to the mitigating circumstances the Defendant is hereby given leave to immediately file a new application showing that he otherwise meets the requisite qualifications at the time of filing said new application; and that if the new application does not reflect otherwise, a new license may be issued without the necessity of the Defendant retaking the examination for registration as a real estate salesman.

DONE AND ORDERED at Orlando, Florida, this 30th day of November, 1978.

LEVIE D. SMITH, JR., Chariman

ARTHUR N. HAMEL, Vice Chairman

VIRGINIA H. BISHOP, Member

GARTH C. REEVES, JR., Member

I CERTIFY that I mailed a copy of the foregoing Final Order to the Defendant Kenneth Steven Kramer, 901 Northeast 23rd Court, Pompano Beach,

Florida 33064, by United States certified/registered mail this 1st day of December, 1978.

C. B. Stafford Executive Director

TH:rm

NOTICE TO DEFENDANT:

This order shall become effective on the 2nd day of January, 1979. However, you have a right of review by an Appellate Court if you desire.

Docket for Case No: 78-001431

Orders for Case No: 78-001431