STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN J. WILLIAMS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-431

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative proceeding was conducted in this matter on June 17, 1981, in Miami, Florida. The following appearances were entered: The Petitioner, John J. Williams, appeared on his own behalf of the Respondent, Board of Real Estate.

The Petitioner filed an application for licensure as a real estate salesman with the Board of Real Estate. The Board voted to deny the application and advised the Petitioner of his right to request a hearing. Petitioner requested a hearing, and the matter was forwarded to the office of the Division of Administrative Hearings. The final hearing was scheduled to be conducted as set out above by notice dated April 8, 1981.

At the hearing, the Petitioner testified as a witness on his own behalf.

Exhibits 1 through 6 were received into evidence. The parties have not submitted post-hearing legal memoranda.

The issue in this proceeding is whether the Petitioner is eligible to take the examination for licensure as a real estate salesman.

FINDINGS OF FACT

1. The parties have stipulated that except for the matters set out by the Petitioner in his response to paragraph 6 on his application for licensure as a real estate salesman, and except for matters which the Respondent contends Petitioner failed to include in response to paragraph 6, the Petitioner is eligible to take the examination for licensure as a real estate salesman.

   
   

2. Paragraph 6 of the application for licensure as a real estate salesman sets out the following inquiry:

   
   

   Have you ever been arrested for, or charged with, the commission of an offense against the laws of any munici- pality, state or nation including traffic offenses (but no parking, speeding, inspection or traffic signal

   violations), without regard to whether convicted, sentenced, pardoned or paroled? If yes, state details includ- ing the outcome in full.

   
   

   The Petitioner responded to this question as follows: "Yes, 1968 charged with assault to kill but not prosecuted." The applicant subscribed and swore to the truthfulness of his answers to questions set out in the application before a notary public. In interrogatories propounded by the Board to the Petitioner, the Petitioner was asked whether he had been arrested other than as set out in response to Question 6 on the application. The Petitioner responded "No," Petitioner swore to the answers to the interrogatories before a notary public.

   
   

3. The Respondent was charged, as revealed in his response to Questions 6 on the application, with "assault to kill." No information was filed by the State Attorney in connection with the charges, and there was no trail nor adjudication every made with respect to them. The charges were dropped.

   
   

4. Petitioner was arrested on two occasions which he did not report in response to Question 6 on the application for licensure. In 1965 he was arrested for urinating on a public street, disturbing the peace through profanity, and resisting arrest. He was arrested while in the Air Force in Wichita, Kansas, for carrying a concealed weapon. The date of this latter offense is not known. The Petitioner was not prosecuted further in either of these instances. It does not appear that any formal charges were issued. He was not tried nor convicted. In failing to include these two arrests in his response to Question 6, the Petitioner was not seeking to hide anything nor to mislead the Board of Real Estate as to his arrest record. Indeed, the Petitioner communicated with his attorney and requested that she make inquiry with respect to his arrest record so that he could accurately respond to the questions. His attorney advised him only of the arrest for "assault to kill." The other two offenses were of a minor sort and occurred some years ago. The Petitioner's failure to include them on his application amounts to excusable neglect given their de minimis nature, the length of time that has elapsed since they occurred, and his efforts to confirm his arrest record through his attorney.

   
   

5. The Petitioner has a reputation for being honest, truthful, trustworthy, and of good character. He has a good reputation for fair dealing. The Petitioner has never been convicted of any crime and has an exemplary employment history. In connection with his employment, it has been made necessary for him to be bonded by local police departments.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sections 120.57(1), 120.60, Florida Statutes. Section 475.17(1) provides:

An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. An appli- cant for an active broker's license

or a salesman's license shall be com-

petent and qualified to make real estate transactions and conduct nego- tiations therefor with safety to investors and to those with 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 regis- tration or license to practice or con-

duct any regulated profession, business, or vocation has been revoked or sus- pended, by this or any other state,

any nation, possession, or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant has been

guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspend- ing 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 reason deemed sufficient, it shall appear to the board that the interest of the public

and investors will not likely be endan- gered by the granting of registration.

The Petitioner meets the qualifications for licensure set out in this paragraph. Section 475.25(f) provides:

[The Board may deny an application for licensure if the applicant has b]een found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state or any other state or of the Unites States, which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing.

The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible

as prima facie evidence of such guilt.

The Petitioner has not been found guilty of any crime against the laws of any state or of the United States. The Petitioner's failure too include two minor instances from his past on his application form does not constitute fraud, and is not, in view of the Petitioner's exemplary personal employment history, evidence of dishonesty, or lack of truthfulness, trustworthiness, or good

character. The Petitioner is fully eligible to be admitted to the examination for licensure as a real estate salesman.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

That the Board of Real Estate enter a final order admitting the Petitioner to the examination administered for real estate salesmen, and upon satisfactory completion of the examination that the Board of Real Estate issue a real estate salesman's license to the Petitioner.

RECOMMENDED this 16th of July, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1981.

COPIES FURNISHED:

Mr. John J. Williams 2901 N.W. 187th Street Post Office Box 1726 Miami, Florida 33055

Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol

Tallahassee, Florida 32301

Nancy Kelley Witenberg Secretary, Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

C.B. Stafford Executive Director Board of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-000431

Orders for Case No: 81-000431