STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY ROSS SMART, )

)

Petitioner, )

)

vs. ) CASE NO. 81-271

)

DEPARTMENT OF PROFESSIONAL ) REGULATIONS, BOARD OF REAL ESTATE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for hearing before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings, on March 31, 1981 in Orlando, Florida.

APPEARANCES

For Petitioner: Richard J. R. Parkinson, Esquire

602 East Central Boulevard Orlando, Florida 32801

For Respondent: Linda A. Lawson, Esquire

Assistant Attorney General Department of Legal Affairs Office of Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301

On October 7, 1980 Petitioner Jerry Ross Smart of Maitland, Florida, filed with the Respondent an application for registration as a real estate salesman. In answer to questions 6, 7A and 15 of the application form concerning the Petitioner's prior arrest and convictions, civil judgments and prior license revocations, the Petitioner attached an addendum do scribing such actions taken against him in all these areas since 1977. By letter dated December 17, 1980, the Board of Real Estate denied the application of the Petitioner for registration as a real estate salesman based upon his answers to these questions and more particularly his revelations concerning his criminal record. By letters dated January 7 and 19, 1981, the Petitioner, by and through his counsel, requested a formal hearing pursuant to Chapter 120.57(1), Florida Statutes. A hearing was held on March 31, 1981, at which time the Petitioner availed himself of the opportunity to present evidence regarding his qualifications for issuance of a real estate license. The Petitioner presented three witnesses on his behalf at the hearing as well as four exhibits, all of which were admitted into evidence. The Respondent's denial of licensure to the Petitioner is predicated upon Section 475.17, Florida Statutes which provides that an applicant who has had a license revoked ". . . shall be deemed not to be qualified." The applicant may overcome this disqualification only by an affirmative showing of rehabilitation which is sufficient to demonstrate that the applicant has become

possessed of the specific statutorily required character attributes subsequent to the prior disqualification. The issue here is thus whether this applicant possesses those character traits of honesty, truthfulness, trustworthiness, good character and a good reputation for fair dealing which will establish that he has sufficiently rehabilitated himself to justify licensure.

FINDINGS OF FACT

1. Jerry Ross Smart was a registered real estate broker with the Florida Real Estate Commission prior to the revocation of his registration by final order entered May 23, 1977. The revocation was invoked pursuant to a multiple count disciplinary complaint under Section 475.25, Florida Statutes, involving the Petitioner's failure to escrow funds upon his receipt of them and failure to properly account for those funds, including co-mingling them with his personal funds. The Petitioner's proscribed course of conduct in the transaction which ultimately resulted in his license revocation also lead to criminal prosecution for attempted grand larceny. The Petitioner pled no contest to the criminal charges and was found guilty of attempted larceny, but adjudication was withheld and he was placed upon probation for one year and ordered to make restitution of

   $5,000. The sentence was imposed on June 29, 1976, almost five years ago. The Petitioner successfully completed his probationary period and made restitution within the time period required by borrowing the required funds from a bank which loan has subsequently also been repaid. He was terminated from probation on June 4, 1977 just prior to his license revocation by the Florida Real Estate Commission.

   
   

2. Since the revocation of his real estate broker's license, the Petitioner has been, of course, unable to practice his profession and has had difficulty finding other steady employment due to public knowledge of his criminal conviction, with the result that his and his family's financial security has never since been stabilized or firmly assured. Nevertheless, the Petitioner has steadfastly strived at numerous jobs in an effort to support his family of seven and to provide several of his five daughters with a college education. These jobs included employment as a salesman for a radio station, a traveling salesman for a tool company, a traveling salesman for a chemical company, and a manager for a real estate developer. For approximately the last two years the Petitioner has worked at a rather grueling job as a newspaper delivery man for the Orlando Sentinel Star. He has been required by this employment to arise at 2:00 a.m. seven days a week in order to deliver newspapers for several routes for his employer, for which he has been able to earn approximately $25,000 per year to furnish support for his large family as well as higher education for two of his children. At the hearing, his immediate supervisor, Ralph Magio, described the Petitioner as a very trustworthy employee, possessed of substantial initiative and fortitude as evidenced by his working at such a strenuous job in his middle age. During the entire two years he has worked at this job (subsequent to his revocation and criminal conviction), the Petitioner has regularly collected, handled and accounted for substantial sums of money for this employer and his supervisor with never an irregularity or questionable incident. The witness established that he had no qualms in continuing to so employ the Petitioner and trust him in accounting for his money. This witness established that he, as well as mutual friends and business associates of he and the Petitioner regards the Petitioner as honest, fair and trustworthy in all monetary transactions and such other incidents of business dealing as he has been able to be involved in as a mere employee. The Petitioner has been unable, primarily for financial reasons, to operate his own independent business in his community since his criminal conviction.

3. Former Sheriff Melvin Coleman of Orange County, Florida has known the Petitioner both socially and with knowledge of his business reputation before and after his criminal conviction. Mr. Coleman described in detail the Petitioner's initiative, fortitude and his sacrifices of many of life's pleasurable aspects necessitated by his being forced to accept whatever jobs he could find in order to support his family. His testimony establishes that he, as well as their mutual friends, continues to hold the Petitioner in high regard insofar as his reputation for honesty and trustworthiness are concerned, even among those mutual friends and professional acquaintances who are aware of the Petitioner's criminal conviction.

   
   

4. Witness Jerry Behn is a licensed real estate broker of long standing. He described his former business relationships with the Petitioner when he was a licensed broker, as well as their personal friendship. Mr. Behn dealt with the Petitioner as a fellow real estate broker prior to his revocation without any qualm, experiencing no breach of trust or failure by the Petitioner to measure up to the standards of integrity required of a broker. This witness demonstrated that be and others in the profession, who have known the Petitioner both before and after the episode leading to his revocation, would trust the Petitioner in further real estate dealings and this witness supports his application for registration. Mr. Behn's trust and belief in the Petitioner's integrity has been buttressed by his knowledge of the Petitioner's rather harrowing financial circumstances and the perseverance associated with his employment at mediocre, financially inadequate jobs such as the strenuous occupation of delivering newspapers at all hours of the day and night seven days a week in order to support his family, when more rewarding jobs are denied him. He is impressed with the humility and courage demonstrated by the Petitioner's supporting a large family with such difficulty after having become accustomed to a high income and favorable station in life prior to his revocation of the privilege of practicing his profession.

   
   

5. The Petitioner testified on his own behalf regarding his qualifications to be a real estate salesman and the factors incident to his rehabilitation since the revocation of his broker's license. The totality of his testimony and general demeanor reveal that the acute embarrassment and subsequent financial and familial hardships and sacrifices he and his family have endured since his downfall almost five years ago have instilled in him a valuable lesson which will constantly serve as a reminder to him of the standards of conduct required of one licensed in the real estate profession. He described the numerous mediocre jobs he has had to accept since his revocation in order to support his family, which have rendered his and his family's existence especially trying, since they were accustomed to a relatively high income and social station prior to his revocation which they have been unable to enjoy since. In describing the various unrewarding jobs he has held and the arduous nature of his current employment, the Petitioner indicated regret at not being able to resume his involvement in civic affairs and service organizations, but that his working schedule and the difficult hours it entails has prevented him from doing so. He is active in his church however and his testimony and demeanor corroborates that of the showing by the other witnesses on his behalf that he is a responsible, mature husband and father and that he heartily regrets the aberrational behavior he engaged in on the isolated occasion in 1976. He feels that the hard lesson learned as a result will render him more capable of adhering to the strict standards required in the real estate profession. He has completed all required educational courses to qualify as a real estate salesman.

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Section 475.17(1), Florida Statutes, provides:

   
   

   An applicant for licensure. . . shall be . . . honest, truthful, trustworthy and of good character and shall have a good reputation for fair dealing. An applicant shall be competent and qualified to make real estate transactions and conduct negotiations there for with safety to investors and to those whom he may undertake a

   relationship of trust and confidence. If the applicant has been denied registration or a license or has

   been disbarred, or his registra- tion or license to practice or conduct any regulated profession, business or vocation has been revoked or suspended, . . . because of any conduct or practices which would have warranted a like result under this chapter . . . the applicant shall be deemed not to be qualified, unless, because of lapse of time and subsequent

   good conduct and reputation, or other reason 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.

   
   

   Section 475.25(1)(f), Florida Statutes (1979) provides that the Board of Real Estate may deny an application for licensure for applicants who have:

   
   

   Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state . . . which crime directly relates to the activities of a

   licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing.

   
   

7. The above provisions thus require that an applicant be possessed of the traits of honesty, truthfulness, trustworthiness and general good character before the Board of Real Estate will grant a license. If such an applicant has in the past been convicted of a crime involving moral turpitude or which directly relates to his activities as a broker or salesman or involves fraudulent or dishonest dealing, then such a conviction, which would justify

   revocation pursuant to Section 475.25 also will operate for purposes of Section 475.17, Florida Statutes, as a mandatory bar to licensing, unless a licensed applicant presents evidence which will demonstrate rehabilitation to the extent that he is once again clothed with those character traits required by the above statutory authority. There is no question that the crime of which the Petitioner was convicted related directly to his activities as a licensed broker as envisioned by the above provision, since it involved misappropriation of escrow funds. A crime of moral turpitude has been defined as "anything contrary to justice, honesty, principle or good morals." Carp vs. Florida Real Estate Commission, 211 So.2d 240, 241 (Fla. 3rd DCA 1968) quoting from State ex rel.

   Tullidge vs. Hollingsworth, 108 Fla. 607, 146 So.2d 660, 661 (1939). Moral turpitude has been more recently defined as a crime having as its essential element the intent by the perpetrator to defraud or deceive another. See Winestock vs. Immigration and Naturalization Service, 576 Fed.2d 234 (9th Circuit 1978)

   
   

8. It is undisputed that the Petitioner herein was convicted of a crime of moral turpitude in 1976 which would justify the revocation of his license and concomitantly, in the absence of a showing of the various elements of rehabilitation, the denial of his application for re-licensure. It thus falls upon the Petitioner to demonstrate subsequent rehabilitation because of the lapse of time since the offense in question, his subsequent good conduct and reputation and the acquisition or restoration of those traits of good and honest character, so that the above statutory provisions will be satisfied and that the interests of the public and investors will not likely be jeopardized by his re- licensure.

   
   

9. The Petitioner has met his burden of proof. He has demonstrated he has had no other problem with the law before or since the aberrational episode of criminal behavior occurring in 1976, approximately five years ago. He successfully and timely completed his probation and made full, timely restitution of the subject $5,000, at considerable financial hardship to himself and his family. The testimony presented at the hearing, which was unrefuted, establishes that the Petitioner now enjoys a very favorable reputation for honesty, integrity and courage among his friends, acquaintances and present and former business associates. The unrefuted evidence of sound character and reputation for honesty and trustworthiness enjoyed by the Petitioner is especially impressive to the Hearing Officer in that it was established by unrefuted evidence adduced from witnesses who so testified with previous knowledge of the Petitioner's past criminal conviction. The Petitioner has without a doubt been rehabilitated so as to be entirely worthy of licensing, as evidenced in large part by the maturity and responsibility be has displayed in relinquishing most of life's pleasures for unstinting hard work in an effort to support his large family no matter how arduous, difficult or demeaning that work has been in the long years since his difficulties began. The difficulty in supporting his family has been rendered much more burdensome by the mere fact of his criminal conviction, which renders it impossible for him to secure a job which will provide his family with income comparable to that which they enjoyed prior to his mistake, and which would permit time for him to pursue civic and recreational activities which are so important to the happiness and contentment of he and his family. The Hearing Officer is likewise impressed by the fact that the one activity the Petitioner has been able to find time to engage in, aside from the support and nurture of his family, is work with his church. This bespeaks of the soundness and basic decency of his character, as does his candor and genuinely contrite and repentant demeanor during the course of his testimony.

10. There is a punishment which goes unnoted in the records of any court and yet which is most uniformly and mercilessly inflicted on otherwise responsible men who, due to a transitory mistake, fall from a previously favored position in their community and their life and who thereafter must, with painful remembrance of the pleasurable station and pursuits they and their families once enjoyed, labor in their community in arduous, demeaning, obscure employment in order to merely provide their family with some modicum of security, without the opportunity to engage in the career at which they are most suited, were formerly successful and which brought both security and contentment to themselves and their families. Such a punishment is largely caused and rendered more bitter and prolonged by their community's unwillingness to forget their lone error and forgive them for it. The court which adjudged this man's guilt held his punishment to be at an end almost four years ago. It is time his punishment was truly ended.

RECOMMENDATION

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

RECOMMENDED that a final order be entered approving the application of Jerry Ross Smart for licensing as a real estate salesman.

DONE AND ENTERED this 11th day of May, 1981 in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 11th day of May, 1981.

COPIES FURNISHED:

Richard J.R. Parkinson, Esquire 602 East Central Boulevard Orlando, Florida 32801

Linda A. Lawson, Esquire Assistant Attorney General Department of Legal Affairs Office of Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301

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

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION

JERRY ROSS SMART,

Petitioner,

vs. CASE NO. 81-271

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

Respondent.

/

FINAL ORDER

This matter came on for final order upon a hearing officer a of the Division of Administrative Hearings having conducted a formal proceeding in this matter and having submitted a recommended order date May 19, 1991 (Copy attached). No exceptions to the recommended order have been received. After examining the recommended order, the pleadings and the record filed herein;

It is ORDERED that:

1. The Department adopts the findings of fact as stated by the hearing officer in the recommended order.

   
   

2. The Department rejects the conclusions of law as stated by the hearing officer in the recommended order. The Petitioner has not met his burden of showing rehabilitation due to the lapse of time and subsequent good conduct and reputation since sufficient time has not lapsed from the date Petitioner's real estate broker's license was revoked on May 23, 1977.

WHEREFORE, Petitioner's application for a license as a real estate salesman is hereby denied.

DONE AND ORDERED this 22nd day of June 1981.

NANCY KELLEY WITTENGERG, Secretary

Department of Professional Regulation

COPIES FURNISHED:

Richard J. R. Parkinson, Esq. 602 East Central Boulevard Orlando, Florida 32801

Linda A. Lawson, Esq. Assistant Attorney General Department of Legal Affairs The Capitol, Suite 1601 Tallahassee, Florida 32301

P. Michael Ruff Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

C. B. Stafford Executive Director Board of Real Estate

400 West Robinson Avenue Orlando, Florida 32801

Docket for Case No: 81-000271

Orders for Case No: 81-000271