STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES TIDWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 80-144

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before the Division of Administrative Hearings and its duly designated Hearing Officer, Sharyn L. Smith, on May 8, 1980. The parties were represented by counsel:

APPEARANCES

For Petitioner: William M. Stern, Esquire

SHADES & STERN, P.A.

Suite 510, 151 Wymore Road Altamonte Springs, Florida 32701

For Respondent: Randy Schwartz, Esquire

Assistant Attorney General The Capitol

Tallahassee, Florida 32301

Petitioner, James Tidwell (hereafter "Petitioner"), seeks to require the Respondent, Board of Real Estate (hereafter "Board"), to consider him qualified for registration as a real estate salesman. The Petitioner's application for registration was denied due to his failure to include on his application certain arrests. Due to this omission, the Board found the Petitioner did not meet the qualifications of Section 475.17, Florida Statutes.

Proposed Recommended Orders have been submitted by both parties. Those proposed findings not included in this Recommended Order were not considered relevant to the issues, were not supported by substantial evidence or were considered immaterial to the results reached.

FINDINGS OF FACT

1. On September 21, 1979, the Petitioner completed his application for registration as a real estate salesman. The application was received by the Board on September 23, 1979.

   
   

2. The application contains the following question:

   (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?

   
   

3. Petitioner's arrest record reflects that he was involved in two incidents with the law. The first occurred on April 25, 1975, when he was arrested on two charges, robbery of a business and assault with intent to commit a felony. The second incident occurred on December 6, 1977, and resulted in arrests for amphetamine possession, resisting arrest with violence, criminal mischief, aggravated assault and possession of a concealed firearm. The second incident resulted from a domestic dispute between Petitioner and his former wife.

   
   

4. No indictment was returned or information filed as to the arrests which resulted from the April 25, 1975, incident.

   
   

5. The December 6, 1977, incident resulted in a conviction on the resisting arrest charge. No indictment was returned or information filed on the remaining charges.

   
   

6. In his application, Petitioner responded to question six (6), as set forth above, by stating that he was involved in two criminal episodes. However, as to the second set of charges, Petitioner failed to fully state those offenses which he had been arrested for or charged with.

   
   

7. It was Petitioner's understanding that the arrests which did not result in charges being filed were not required to he listed. Petitioner reached this conclusion after consulting a real estate instructor at the real estate school he attended in preparation for the exam.

   
   

8. Additionally, Petitioner was confused regarding the legal status of the second set of charges.

   
   

9. Due to the above circumstances, Petitioner unintentionally failed to fully disclose his prior arrest record.

   
   

10. The fact that his arrests for the 1975 incident were fully disclosed while the 1977 arrests were not, supports this finding in that the disclosed 1975 arrests involved potentially more serious charges.

    
    

11. Petitioner has not been involved with the law since the 1977 incident, has since remarried and as evidenced by character letters and testimony, presently holds and has held two responsible jobs in the Orlando area. (Petitioner Exhibit 1-4)

    
    

    CONCLUSIONS OF LAW

    
    

12. Petitioner was found unqualified for registration by the Board because he does not meet the standards of Section 475.17, Florida Statutes, which requires that an applicant for licensure be honest, truthful, trustworthy, of good character and that he bears a good reputation for fair dealing and 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.

    
    

13. Due to Petitioner's misunderstanding concerning disclosure of his prior arrests, there is insufficient evidence to establish that the Petitioner intended to deceive or mislead the Board. This conclusion is buttressed by Petitioner listing one serious arrest while failing to list others of a less serious nature.

RECOMMENDATION

It is, therefore RECOMMENDED:

That Petitioner be given leave to immediately file a new application showing that he meets the qualifications for registration as a real estate salesman.

DONE and ORDERED this 28th day of May, 1980, in Tallahassee, Florida.

SHARYN L. SMITH

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Randy Schwartz, Esquire Assistant Attorney General The Capitol

Tallahassee, Florida 32301

Ken Oertel, Esquire General Counsel

Department of professional Regulation-Legal Section

2009 Apalachee Parkway

Tallahassee, Florida 32301

William M. Stern, Esquire SHADES & STERN, P.A.

Suite 510, 151 Wymore Road Altamonte Springs, Florida 32701

C. B. Stafford, Executive Director Florida Board of Real Estate

400 West Robinson Post Office Box 1900

Orlando, Florida 32801

Docket for Case No: 80-000144

Orders for Case No: 80-000144