Judges: SHARYN L. SMITH
Agency: Department of Business and Professional Regulation
Latest Update: Mar. 31, 1982
Summary: Petitioner failed to meet his burden by producing evidence that he has good conduct and reputation in the community following his release from prison.
81-1372.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PHILIP H. NORMAN, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1372
)
DEPARTMENT OF PROFESSIONAL )
REGULATION, Board of Real Estate, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Sharyn L. Smith, held a formal hearing in this case on December 2, 1981, in Naples, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Robert G. Hines, Esquire
1020 Eighth Avenue South, Suite 4
Naples, Florida 33940
For Respondent: Jeffrey A. Miller, Esquire
Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301
The issue presented at the final hearing was whether the Petitioner Philip
H. Norman, is disqualified for licensure as a real estate salesman due to prior criminal convictions in 1971 and 1973 on federal charges of possessing merchandise stolen from interstate commerce and selling or dealing in forged federal reserve notes.
At the final hearing the Petitioner testified on his own behalf and Petitioner's Exhibit 1 was admitted Into evidence. Respondent's Exhibits 1-4 were also admitted.
A proposed Recommended Order was filed by the Respondent. Those findings not included in this Recommended Order were not considered relevant to the issues, were not supported by competent and substantial evidence or were considered immaterial to the results reached.
FINDINGS OF FACT
On or about November 11, 1980, the Petitioner Norman applied to the Respondent Board of Real Estate for licensure as a real estate salesman.
In response to question six on the application for licensure which requires disclosure of an applicant's criminal history, the Petitioner noted prior convictions in 1960 for breaking and entering, and convictions in 1971 and 1973 for dealing in stolen property and counterfeit obligations, respectively.
In February, 1971, the Petitioner Norman was convicted by a federal court in Rhode Island of possessing merchandise stolen from interstate commerce in violation of 18 USC 659 and received three concurrent one-year probationary sentences based on three separate indictments. On February 1, 1973, the Petitioner was convicted of violating 18 USC 472, possession of counterfeit money, and was sentenced to three years in federal prison. Petitioner was released in 1976. While in prison in Kentucky, the Petitioner left a work- release program to return to Rhode Island. He voluntarily surrendered to Kentucky authorities and apparently was never convicted of escape.
Petitioner Norman, his wife, and five children have resided in Florida for approximately four years. Since his release from prison in 1976 the Petitioner has not been arrested for any crime. He presently works as a vinyl subcontractor in the Naples area. He and his wife own 30 percent of the outstanding stock of a registered real estate brokerage corporation, Terra Properties, Inc., presently doing business in the Naples area.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Section 475.17(1), Florida Statutes, states in pertinent part that an applicant for licensure as a real estate broker or salesperson shall be ". .
.honest, truthful, trustworthy and of good character and have a good reputation for fair dealing." An applicant for licensure must be competent and qualified to make real estate transactions and conduct negotiations ". . .with safety to investors and to those with whom he may undertake a relationship of trust and confidence." If an applicant is found to have committed acts which would have justified revoking or suspending his license in Florida, the applicant shall not be deemed qualified for licensure 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 the license. Additionally, the Board of Real Estate is empowered at Section 475.25(1)(f), Florida Statutes, to deny an application for licensure if it finds that 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 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. . .
In an administrative proceeding, the party seeking affirmative relief from an agency decision has the burden of proving by a preponderance of the evidence that he is entitled to the relief requested. Accordingly, in the instant case, the burden is upon the Petitioner to demonstrate his entitlement to licensure as a real estate salesman.
Since his release from prison in 1976, the Petitioner has not been arrested in Florida or elsewhere for any state or federal crime. However, at the final hearing the Petitioner failed to produce any evidence or testimony corroborating his good conduct during the past six years and his favorable business reputation in the community. Such evidence is essential since the Petitioner's federal convictions for possession of stolen property and selling or dealing in counterfeit money directly relate to the activities of a licensed broker or salesman. Compare Section 112.011(6), Florida Statutes. Under such circumstances, it was incumbent on the Petitioner to affirmatively demonstrate his good conduct and reputation in the community during the period following his release from prison.
Due to the Petitioner's failure to produce such evidence at the final hearing, he has failed to meet his burden of entitlement to licensure.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the application by Petitioner Philip H. Norman for licensure as a real estate salesman be denied.
DONE and ENTERED this 31st day of March, 1982, in Tallahassee, Florida.
SHARYN L. SMITH
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 31st day of March, 1982.
COPIES FURNISHED:
Robert G. Hines, Esquire 1020 Eighth Avenue South Suite 4
Naples, Florida 33940
Jeffrey A. Miller, Esquire Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301
Frederick H. Wilsen, Esquire Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Carlos B. Stafford, Executive Director Florida Real Estate Commission
400 West Robinson Post Office Box 1900
Orlando, Florida 32802
Samuel R. Shorstein, Secretary Department of Professional Regulation Old Courthouse Square Building
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 81-001372
Orders for Case No: 81-001372
| Issue Date |
Document |
Summary |
|
Mar. 31, 1982 |
Recommended Order
|
Petitioner failed to meet his burden by producing evidence that he has good conduct and reputation in the community following his release from prison.
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