STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLE LEIGH McGRAW, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1813

) STATE OF FLORIDA, DEPARTMENT OF ) PROFESSIONAL REGULATION, BOARD ) OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, the Division of Administrative Hearings, by its designated Hearing Officer, Michael Pearce Dodson, hold a public hearing in this case on January 29, 1930, in Fort Lauderdale, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Carole Leigh Mcgraw

4180 South West 52nd Court, Apartment #1 Fort Lauderdale, Florida 33314

For Respondent: Tina Hipple, Esquire

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

These proceedings began on August 3, 1979, when the Petitioner requested a Hearing on Respondent's denial, dated July 17, 1979, of Petitioner's application for registration as a real estate salesman with the Florida Board of Real Estate. On August 21, 1979, the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling final Hearing. By notice to all parties, the Hearing was scheduled for January 29, 1980.

At the commencement of the Hearing, the Florida Board of Real Estate (Board) stipulated that the applicant was duly qualified for registration except for the fact that she has been indicted for various offenses explained below in Cincinnati, Ohio. For this reason the Board determined that she had failed to affirmatively demonstrate that she is honest, truthful, trustworthy, of good character and bears a good reputation for fair dealing as required by 475.17 Florida Statutes (1977). The issue in this proceeding is whether or not the fact that the applicant Carole Leigh McGraw was arrested and indicted for four counts of engaging in organized crime, six counts of forgery, one count of theft in office and one count of felony theft in Cincinnati, Ohio establishes that she does not meet the criteria for licensure in 475.17 Florida Statutes (1977).

The Petitioner presented herself as her only witness and offered no exhibits. The Respondent Board offered exhibits 1, 2, 3 and 4 which were received without objection into evidence.

FINDINGS OF FACT

1. By an application received by the Board on March 21, 1979, Petitioner Carole Leigh McGraw applied for registration as a real estate salesman with the Florida Board of Real Estate.

   
   

2. Question number 6 of the application form inquired about past arrests or charges for violation of law. Ms. McGraw indicated that she had been arrested and as an explanation attached a separate sheet of paper on which she disclosed that she was arrested in July, 1973 for various criminal charges pending before the Court of Common Pleas in Cincinnati, Ohio. She referred the Board for further details to her attorney, James N. Perry, Esquire of Cincinnati, Ohio. No attempt was made by the applicant to conceal any of the facts relating to her outstanding charges.

   
   

3. Subsequent to the receipt of her application the Board requested on April 10, 1979, that Ms. McGraw furnish a copy of the indictment and advise the Board of the present status of the indictment. That information was provided by James N. Perry, Esquire who indicated in his letter of April 23, 1979, that counts 1, 2, 3 and 4 of the twenty count indictment had been dismissed. The dismissal was on appeal and probably would be decided eventually by the Ohio Supreme Court as the issue on appeal is the constitutionality of the organized crime status of Ohio.

   
   

4. On July 7, 1978, in the Hamilton County Court of Common Pleas, State of Ohio, the applicant, Carole Leigh McGraw, was indicted by Grand Jury on four counts of engaging in organized crime, six counts of forgery, one count of theft in office and one count of felony theft. None of these charges has been brought to trial.

   
   

5. Except for the foregoing indictment the applicant has never been charged with any violation of law or with being dishonest or immoral in any way.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and over the subject matter of these proceedings 120.57(1) and 120.60 Florida Statutes (1979).

   
   

7. At the time of Ms. McGraw's application for licensure as a Florida real estate salesman, the criteria for a license were contained in 475.17 Florida Statutes (1977) The petitioner has the burden of demonstrating that she is honest, truthful, trustworthy and of good character and that she bears a good reputation for fair dealing. She must further make it appear that she is competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom she may undertake a relationship of trust and confidence.

   
   

8. The age-old American maxim that a person is innocent until proven guilty applies in full force here. While Petitioner has been charged by an indictment with serious crimes, an indictment is nothing more than the legal accusations which are part of the pleadings in a future criminal trial. The sole fact that an indictment against the Petitioner is outstanding and

unresolved does not establish her failure to meet the criteria for licensure as a real estate salesman in the State of Florida.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the application of Carole Leigh McGraw for registration as a real estate salesman with the Florida Board of Real Estate be granted.

DONE and ENTERED this 13th day of February, 1980, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1980.

COPIES FURNISHED:

Tina Hipple, Esquire Department of Professional

Regulation

2009 Apalachee Parkway

Tallahassee, Florida 32301

Carole Leigh McGraw

4180 South West 52nd Court Apartment #1

Fort Lauderdale, Florida 33314

Docket for Case No: 79-001813

Orders for Case No: 79-001813