vs. ) CASE NO. 81-450
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., conducted a formal hearing in this case on May 11, 1981, in Fort Lauderdale, Florida.
For Respondent: Linda A. Lawson, Esquire
Whether Petitioner should be disqualified from taking the real estate salesman license examination based on his alleged failure to disclose on his licensing application a prior arrest and conviction for possession of marijuana.
On February 18, 1981, Respondent, Board of Real Estate ("Board"), informed petitioner, H. Jeffrey Schwartz ("Schwartz"), that his application for licensure as a real estate salesman was denied based on "your answer to question six of the. . . application and your criminal record according to the appropriate law enforcement agency."
Schwartz requested a hearing on the Board's action and on March 3, 1981, the case was referred to the Division of Administrative Hearings for assignment of a hearing officer.
Hearing was set May 11, 1981. Schwartz testified on his own behalf and offered Petitioner's Exhibit 1/ Nos. 1 through 6 into evidence; Exhibit Nos. 1 through 5 were admitted. Respondent called no witnesses and offered Respondent's Exhibit 1/ Nos. 1 through 5 into evidence--each of which was admitted.
The parties subsequently filed proposed findings of fact by May 28, 1981.
Respondent also filed on May 27, 1981, a Motion to Reopen Case to Present Additional Evidence, which motion is denied. See, Conclusion of Law No. 2 below.
Based upon the evidence submitted at hearing, the following facts are determined:
On December 19, 1980, Schwartz filed with the Board his application for licensure as a real estate salesman. In answer to the application's Question No. 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?" (R-1), Schwartz answered, under oath, "Yes." If an applicant answers "Yes", the application asks for details, including the outcome. Schwartz responded:
2.28.69 Possession Marijuana Broward Cty. Sentenced 31 months, Released 4/30/71, No Further Record. (R-1.)
He further explained his answer in a letter attached to the application: Sirs:
In regard to question #6, I was arrested
2.28.69 in Broward County for possession of a small quantity of marijuana. Sentenced by Judge Robert Tyson in Broward County Criminal Court, Ft. Lauderdale, Fl in June of that year to two years, seven months. Released M.C.R. on 4/30/71. No problems since.
H. Jeffrey Schwartz (R-1.)
As part of the application, Schwartz executed an affidavit which provides in part:
The above named, and undersigned, applicant for licensure as a real estate salesman, upon being duly sworn, deposes and says that he is the person so applying, that he has carefully read the foregoing application, answers, and the attached statements, if any, and that all such answers and statements are
true and correct, and are as complete, as h[is] knowledge information and records permit, without any evasions or mental reservations whatsoever, . . . (R-1.)
In answering Question No. 6, Schwartz failed to disclose that he was indicted, arrested, and subsequently convicted of felonious possession of marijuana by the Hustings Court of the City of Richmond, Virginia, on January 31, 1968. Court records indicate that Schwartz, then 19 years old, pled not guilty to the charge; that he was represented by counsel during trial; and that upon hearing the evidence the court found him guilty and returned him to jail pending a pre-sentence-investigation. Subsequently, on March 18, 1968, the court suspended imposition of sentence "during. . .good behavior or until further order of this Court" (R-4), ordered him to pay costs of court, and placed him on supervised probation for an indefinite period. (R-4.)
Schwartz then moved to Florida. In February, 1969, he was convicted of felonious possession of marijuana by the Circuit Court of Broward County and sentenced to 31 months at hard labor. On April 30, 1971, after serving his sentence, he was extradited by Virginia authorities on grounds that his Broward County conviction violated the "good behavior" condition of his earlier suspended sentence. After a hearing, at which Schwartz was again represented by counsel, the Hustings Court found he had not violated the provisions of his 1968 suspended sentence, and released him. At that time, Schwartz was 22 years old. (Testimony of Schwartz; R-4.)
The Board does not contend that these two prior criminal convictions occurring over 12 years ago render him unqualified for examination and licensure as a real estate salesman. Since that time, Schwartz has been a law-abiding and responsible individual. He has conducted research and performed feasibility studies for various commodity marketing firms, and has gained the respect and confidence of his employers. On March 25, 1981, his civil rights were restored-
-except to possess or own a firearm--by order of the Governor and Cabinet of Florida. (Testimony of Schwartz; P-1, P-2, P-3, P-4.)
The Board seeks to deny Schwartz's license application based solely on his failure to fully disclose on the application his prior arrest and conviction for marijuana possession in 1968. Schwartz's defense is that he honestly believed the 1968 offense in Virginia was a juvenile matter, not a criminal offense; and that Question No. 6 on the licensing application did not cover juvenile offenses or adjudications. In reply, the Board acknowledges that Question No. 6 is ambiguous with respect to whether information concerning juvenile offenses is required. It follows that, if Schwartz--rightly or
wrongly--believed that his 1968 offense was juvenile in nature, his answer to Question No. 6 was not unreasonable and cannot fairly demonstrate lack of honesty, truthfulness, and good character. (Prehearing Stipulation, Acknowledgment of Board Counsel.)
Schwartz's testimony that he sincerely believed his 1968 offense to be juvenile in nature, and thus outside the purview of Question No. 6, is rejected as unworthy of belief. His assertion is uncorroboratcd by any independent evidence and is inconsistent with the effect of the following:
The Official Court Records. These records, on their face, indicate that Schwartz was charged with and convicted of a criminal offense in 1968.
The Procedures Used to Convict Him. At his 1968 trial, he pled not guilty; was represented by defense counsel--who
unsuccessfully moved the court to strike the evidence as insufficient to support a judgment
of guilty; and, after being found guilty was returned to jail pending pre-sentence investigation. It is unlikely that a
19-year-old could go through such an experience without realizing that he was being charged with and convicted of a crime.
His Extradition and Return to the Virginia Court. His subsequent criminal conviction in Florida led to his extradition and return,
under guard, to the Richmond Court of Hustings for alleged violation of probation imposed pursuant to his 1968 conviction. After hearing, where he was again represented by counsel, he was reinstated to probation. It is unlikely that Schwartz, then 22 years old, did not understand--by this second encounter with defense counsel and the Court of
Hustings--that his 1968 offense was a crime, and that he had been convicted in a criminal, not a juvenile proceeding.
Schwartz's Demeanor and Intelligence. Schwartz's demeanor as a witness showed him to be an articulate and intelligent individual. As a marketing analyst, he is required to conduct research and perform studies upon which others can rely. Such work requires rational investigation and analysis. His ostensible conclusion that the 1968 offense was a juvenile proceeding was not the result of diligent investigation and analysis: it represents a departure from the analytical habit he has developed in the working environment.
(Testimony of Schwartz; R-4.)
Since Schwartz's assertion that he genuinely believed his 1968 conviction was a juvenile matter is rejected, it follows that his answer to Question No. 6 was incomplete and evasive. With regard to the traits of honesty and truthfulness, it places his character in serious question.
To the extent the parties' proposed findings of fact are incorporated in this Recommended Order, they are adopted; otherwise, they are rejected as unnecessary to resolution of the issues presented or unsupported by the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57, Fla. Stat. (1979).
The Board's motion to reopen this case to present additional evidence is denied. The Board rested its case at the close of hearing on May 11, 1981. Its motion does not allege sufficient cause to reopen. Moreover, it appears that the documents now sought to be offered as additional evidence consisted of records available with the Broward County Clerk's Office at the time of hearing. Florida Department of Transportation vs. J.W.C., Inc., 396 So.2d 778 at 784 (Fla. 1st DCA 1981), discussed the effects of reopening an evidentiary proceeding:
If one side were permitted to produce additional evidence. . .then the other side would necessarily have to be given the same privilege, and each side would of necessity have to be given the right of confrontation and cross-examination of the additional witnesses, and possibly rebuttal. We do not envision the Administrative Procedures Act as permitting such a never-ending process.
Id.
Section 475.17(1), Florida Statutes (1979), provides in part:
(1) An applicant for licensure who is a natural person shall be 18 years of age. . . honest, truthful, trustworthy, and of good character. . .(Emphasis supplied.)
An applicant who does not meet these prerequisites is not entitled to take the license examination or be certified as qualified to practice as a real estate salesman. 475.175(2), 475.181, Fla. Stat. (1979). The purpose of regulation of the real estate profession is to "protect the public by permitting only those who possess special qualifications of aptitude, ability, and integrity to engage in the business." Horn v. Florida Real Estate Commission, 163 So.2d 515, 517 (Fla. 1st DCA 1964). Those who would become real estate professionals are held to high standards of trust, honesty, and candor. Cf. Ryan v. Brown, 326 So.2d 70, 73 (Fla. 2d DCA 1976); Ellis v. Flink, 301 So.2d 493, 494 (Fla. 2d DCA
1974).
An applicant for a license must carry the "ultimate burden of persuasion" of entitlement to the requested license. See, Department of Transportation, supra at 787. In the instant case, Schwartz has not established by sufficient evidence that he possesses the requisite honesty, truthfulness, and good character required by Section 475.17(1), supra. His evasive and incomplete answer to Question No. 6 supports an inference--one which he did not successfully overcome--that he does not comprehend the paramount importance of these character traits to the real estate profession.
As recognized by the Board, his remote convictions for crimes not involving dishonest dealing, fraud, or moral turpitude do not--in themselves-- disqualify him from licensure as a real estate salesman. His deficiency springs from his lack of candor in completing his application. However, just as with a licensee, an applicant for a license should not be held to super-human standards: "He is still a human being and must be held accountable to human standards." Taylor v. State, 194 So.2d 321, 330 (Fla. 2d DCA 1967).
In light of the above, Schwartz's application for licensure must be denied. However, the denial should be without prejudice to his right to reapply and be fairly evaluated at a future time. He has a resilient spirit and has shown himself fully capable of learning from and overcoming his past mistakes. Although he failed to make the required showing in this proceeding, it is entirely possible that he may be able to do so in the future.
