STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP L. CHANDLER, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2424

)

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, on February 10, 1981, at Melbourne, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Appeared in own behalf

For Respondent: R. Jeffrey Miller, Esquire

Assistant Attorney General Department of Legal Affairs Board of Real Estate

The Capitol

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether Petitioner's application for license as a real estate salesman should be approved, pursuant to Chapter 475, Florida Statutes.

Petitioner appeared at the hearing without legal counsel and was thereupon advised by the Hearing Officer as to his rights in administrative proceedings. He stated that he understood such rights and elected to represent himself in this proceeding.

FINDINGS OF FACT

1. By application filed with Respondent on August 20, 1980, Petitioner requested that he be licensed as a real estate salesman. Question number six on the application was answered as follows:

   
   

   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? Yes If yes, state details including the outcome in full: Possession of Marijuana in Vero (Approx Aug '74) Fined $102.

   
   

   The application form included the instruction that if an answer to question six was in the affirmative, the applicant should attach his complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were had or are pending. Petitioner attached to his application a statement reading as follows:

   
   

   Approximately August of 1974 I was found guilty of possession of marijuana. The outcome was a fine of $102.

   
   

   I haven't had any dealings with this sort of thing since. (Exhibit 1)

   
   

2. By letter of October 31, 1980, Respondent's legal adviser informed Petitioner that the Board of Real Estate had denied his application for licensure based on his answer to question six of the application and his criminal record. (Exhibit 4)

   
   

3. On April 20, 1975, Petitioner was arrested by the Vero Beach Police Department on charges of driving while intoxicated and possession of less than five grams of marijuana. On April 22, 1975, Petitioner was convicted of the charges and was fined $302.00 for driving while intoxicated, and his driver's license was suspended for four months. He was fined $102.00 on the charge of possession of marijuana. (Exhibit 2)

   
   

4. On February 24, 1979, Petitioner was cited by the Florida State Highway Patrol for having no valid driver's license. (Exhibit 3)

   
   

5. The application form filed by Petitioner captions that the applicant must answer every question without evasion and recites the applicant's acknowledgment that every answer to the questions therein "states the truth and full truth concerning the inquiry, so far as known or can be ascertained." The affidavit of the applicant to the application includes the statement that all answers and statements therein are true and correct, "and are as complete as h knowledge, information and records permit, without any evasions or mental reservations whatsoever." (Exhibit 1)

   
   

6. Petitioner testified at the hearing and admitted the fact of his 1975 arrest and conviction in Vero Beach, Florida. He also admitted being cited for not having a valid driver's license in 1979, but claimed that this charge was dismissed when he subsequently produced his driver's license to law enforcement authorities. During the course of his testimony, Petitioner also admitted being convicted of driving while intoxicated while in Michigan in 1968 or 1969 for which he was fined $175.00 and received a suspension of his driver's license for a period of six months. He testified that he did not list the DWI convictions on his application form because he believed that they constituted traffic offenses which need not be disclosed. His testimony is not deemed credible in this respect. (Testimony of Respondent)

   CONCLUSIONS OF LAW

   
   

7. Section 475.181, Florida Statutes, provides that the Department of Professional Regulation shall license any applicant whom the Board certifies to be qualified to practice, and that the Board shall certify any applicant who, inter alia, satisfies the requirements of Section 475.17, Florida Statutes.

   
   

8. Section 475.17, Florida Statutes (1980), establishes qualifications for licensure and provides in subsection (1) thereof that an applicant must be "honest, truthful, trustworthy, and of good character. . ." It is clear from the evidence that Petitioner has failed to establish such qualifications by not disclosing all of his previous arrests and charges, as set forth in the foregoing Findings of Fact. It is fundamental that Respondent should not license an applicant who has not established his honesty and trustworthiness to such a degree that the interest of the public and investors with whom a licensee undertakes a relationship of trust and confidence would not likely be endangered. Petitioner has not established his qualifications in this regard.

RECOMMENDATION

That Petitioner's application for licensure as a real estate salesman pursuant to Chapter 475, Florida Statutes, be DENIED.

DONE and ENTERED this 10 day of March, 1981, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1981.

COPIES FURNISHED:

R. Jeffrey Miller, Esquire Assistant Attorney General Department of Legal Affairs Board of Real Estate

The Capitol

Tallahassee, Florida 32301

Philip Chandler Post Office Box 406 2000 Baird Street

Roseland, Florida 32957

Department of Professional Regulation

Board of Real Estate

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 80-002424

Orders for Case No: 80-002424