STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBIN JONES, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2037

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings, on January 27, 1981 in Fort Lauderdale, Florida. This cause came on to be heard on the Petitioner's request for hearing regarding the Board of Real Estate's denial of her application for licensure as a real estate saleswoman, and the Petitioner's desire to present evidence concerning her qualifications for registration as a real estate salesman. The following appearances were entered:

For Petitioner: Robin Jones

6149 Royal Palm Boulevard Margate, Florida 33063

For Respondent: Jeffrey Miller, Esquire

Board of Real Estate Legal Advisor Assistant Attorney General Department of Legal Affairs

Office of the Attorney General The Capitol

Tallahassee, Florida 32301

The Board of Real Estate, at its duly designated meeting of September 15, 1980, denied the Petitioner's application for licensure as a real estate saleswoman pursuant to Section 475.17(1) Florida Statutes (1979). The specific reason for the denial is predicated on the Petitioner's response to question 6 of the licensing application wherein she revealed her arrest record The Petitioner timely requested a hearing pursuant to Section 120.57, Florida Statutes, and the cause came on for hearing on January 27, 1981. The issue to be determined is whether the Petitioner is qualified for licensure in accordance with the criteria enumerated in Section 475.17(1), Florida Statutes (1979). The Respondent presented no witnesses.

FINDINGS OF FACT

1. The Petitioner is a resident of Fort Lauderdale and has been for a substantial number of years. All of her immediate family resides in Fort Lauderdale. The Petitioner attended college in New York until 1972. While attending college in New York, in 1972, the Petitioner, while riding with her

   brother in a friend's car, was arrested on a charge involving possession of marijuana. The marijuana in question was owned by the driver of the car and the Petitioner and her brother did not know of its Presence in the car at the time of the arrest. She was sentenced to a year of Probation, which was later shortened and she was assured that her arrest record would thereafter be expunged. Upon executing the subject application, however, she gave full disclosure of her arrests.

   
   

2. Early in 1977 the Petitioner was arrested for petty theft in Fort Lauderdale. The charge involved her changing the price tag on a minor item of wearing apparel. She pled guilty to that charge and was fined $90.50 plus costs, which she promptly paid. Both arrests occurred at a time when the Petitioner was single and, other than employment to provide her own support, was burdened by few adult or familial responsibilities.

   
   

3. Since the 1977 arrest the Petitioner has married, has a child and, until she became an expectant mother, worked at a savings and loan association in charge of maintenance and escrow accounts for mortgage customers of the institution. The Petitioner customarily and daily received, accounted for and generally handled for that bank large amounts of cash and proved to be a trusted and satisfactory employee until she voluntarily left that employment.

   
   

4. Petitioner's husband is a swimming pool construction contractor and is employed full time in that profession. Since late 1979 the Petitioner has been a housewife and engaged in rearing their child.

   
   

5. The Petitioner's brother is a realtor with Russ Realty, Inc. of Fort Lauderdale. He corroborated the showing of the Petitioner that she has been assured regular, full-time employment with that real estate firm upon successful completion of the real estate examination. He and other members of the real estate firm are confident she will prove an asset to the firm as well as the real estate profession.

   
   

6. A substantial period of time has elapsed since her 1977 petty theft arrest which occurred at a time when she was working as a waitress and enjoyed less fortunate financial circumstances and a generally more turbulent way of life. That arrest represents the only recorded episode in her life evincing any intent to engage in a less than honest and trustworthy course of conduct. Since that time her life style has changed considerably with the advent of her marriage and family responsibilities, and her recent trust-demanding employment, all of which she has accepted and discharged in a mature manner. Her demeanor reflects a young lady who has led a wholesome and useful life but for this brief miscreant conduct during a period of some personal instability.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding.

   
   

8. Section 475.17(1), Florida Statutes (1979), provides in pertinent part that if an applicant for licensure:

   
   

   has been guilty of conduct or practices in this State or elsewhere which would have been grounds for revoking or suspending his license under this Chapter had the applicant then been registered, the applicant shall be

   deemed not to be qualified, unless, because of lapse of time and subsequent good conduct and reputation, or other reasons deemed sufficient, it shall appear to the Board that the interest of the public and investors will not likely be endangered by the granting of registration.

   
   

9. Section 475.25(1)(f), Florida Statutes, to be read in para materia with the above provision, provides that it shall be a ground for revocation, suspension or other form of discipline should one who is already registered have been found guilty of a crime against the laws of Florida or any other State or the United States, ". . . which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing "

   
   

10. Thus, the above provisions require that an applicant be possessed of the traits of honesty, truthfulnes, trustworthiness and general good character before the Board will grant a license. If such an applicant has in the past been convicted of a crime involving moral turpitude, fraudulent or dishonest dealing, such a conviction under Section 475.17 mandatorily operates as a bar to licensing unless the applicant presents evidence which will demonstrate rehabilitation such that he is once again possessed of those character traits required by the above provisions. A crime involving moral turpitude has been defined as "anything done contrary to justice, honesty, principle or good morals. Carp v. Florida Real Estate Commission, 211 So.2d 240, 241 (Fla. 3rd DCA 1968), quoting from State ex rel. Tullidge v. Hollingsworth, 109 Fla. 607,

    146 So. 660, 661 (1939). Moral turpitude was defined as a crime having as an essential element the intent to defraud or deceive in Winestock v. Immigration and Naturalization Service, 576 F.2d 234 (9th Cir. 1978).

    
    

11. There is no question that the Petitioner was convicted of a crime of moral turpitude in 1977. She intentionally committed an act designed to permanently deprive another of the possession of his property through a deceptive act. Thus, she must demonstrate rehabilitation by lapse of time since the offense, subsequent good conduct and the acquisition or restoration of those traits of good character required by the above statutory provisions.

    
    

12. The Petitioner's evidence and testimony was uncontroverted and established that at the time the arrest occurred in 1977 she was working as a waitress and enjoyed less favorable financial circumstances than she does at the present. She was single, had few or no family or other responsibilities, and in general was possessed at that time of fewer of the civilizing influences and constraints on the somewhat aberrant forms of conduct in which otherwise reliable humans are occasionally wont to indulge. It is noteworthy, however, that upon appearing before the court in that criminal case she forthrightly admitted her guilt and demonstrated genuine remorse at having brought such embarrassment and dishonor upon herself and her family. It is even more significant that after this unfortunate episode she obtained a responsible employment position with a savings and loan association and was unhesitatingly given the duty of handling large amounts of money for the institution on a daily basis, which is unrefuted evidence of her general reputation for honesty and fair dealing. Her unblemished record of honesty in this trust-demanding position coupled with her subsequent marriage to a husband who is a responsible member of the business community in her locality, as well as the uplifting obligation of rearing their child, has obviously impressed her with the importance of adopting a wholesome style of living in order to serve as an

exemplar of decent moral standards for her child and family. This manifestation of honest, mature character, was well as the obvious and, indeed, beneficial embarrassment imposed upon this basically decent person by her apprehension and conviction on this charge, convinces the Hearing Officer that the character and, of late, the reputation of the Petitioner exemplifies honesty, truthfulness, trustworthiness and general decency even if it may have been deficient in those attributes some four years ago. The natural maturation process occasioned by the lapse of approximately four years, as well as that imposed by the addition of stabilizing responsibilities as a wife, mother and trusted, dependable employee, convinces the Hearing Officer that the Petitioner's character has undergone sufficient rehabilitation so that she now possesses those traits of honesty, trustworthiness and fair dealing to qualify her for licensure as a real estate saleswoman. The uncontroverted evidence in the record amply demonstrates the Petitioner's good conduct and reputation and enhanced integrity since her conviction and suggests no reason why the interests of the public would be endangered and would not be served by permitting the Petitioner the opportunity to enjoy a productive life in her chosen profession as a real estate saleswoman.

RECOMMENDATION

In consideration of the foregoing Findings of Fact and Conclusions of Law, and the candor and demeanor of the witnesses, it is

RECOMMENDED that a final order be entered approving the application of Robin Jones for licensing as a real estate saleswoman.

DONE AND ENTERED this 3rd day of March, 1981 in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1981.

COPIES FURNISHED:

Jeffrey Miller, Esquire

Board of Real Estate Legal Advisor Assistant Attorney General Department of Legal Affairs

Office of the Attorney General The Capitol

Tallahassee, Florida 32301

Robin Jones

6149 Royal Palm Boulevard Margate, Florida 33063

Nancy Wittenberg, Secretary Department of Professional Regulation

130 North Monroe Tallahassee, Florida 32301

Docket for Case No: 80-002037

Orders for Case No: 80-002037