STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILTON F. GUY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1790

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, Board of Real Estate, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on November 25, 1981, in Tampa, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mr. Milton F. Guy, pro se

14404 North 18th Street Lutz Florida 33549

For Respondent: Jeffrey A. Miller, Esquire

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

BACKGROUND

These proceedings began on July 6, 1981 when Petitioner, Mr. Milton F. Guy requested a hearing on the denial of his application for licensure as a real estate salesperson by Respondent, the Florida Board of Real Estate. On July 13, 1981 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. That hearing was noticed for and held on November 25, 1981.

At the hearing Petitioner presented himself as his only witness and offered no exhibits. Respondent presented no witnesses but offered Exhibits 1 and 2 which were received into evidence. Hearing Officer Exhibit 1 was also received into evidence. It is the same document contained in Respondent's Exhibit 2 but it also includes the attachments (Petitioner's police record and record of residences) which were originally part of Respondent's Exhibit 2 (his application).

Because the Board's letter of denial to Petitioner is ambiguous 1/ it was stipulated upon the Hearing Officer's inquiry that the reason why Mr. Guy's application was denied is that he failed to make a full and truthful disclosure in response to Question #6 of the Board's application for licensure.

At the conclusion of the hearing the parties were informed of their right to submit proposed Findings of Fact and proposed Recommended Orders. Section 120.57(1)(b)4. Florida Statutes (1981). Neither party indicated a desire to make such submissions.

ISSUE PRESENTED

Has Mr. Guy demonstrated that he is honest, truthful, trustworthy, and of good character and has a good reputation for fair dealing as required by Section 475.17, Florida Statutes (1981)?

FINDINGS OF FACT

1. On March 23, 1981, Mr. Guy filed an application for licensure as a real estate salesperson with the Florida Board of Real Estate. By a letter dated May 19, 1981, the Board denied Mr. Guy's application. As stated by the letter, "the specific reasons for the Board's action is based on your answer to Question #6 of the licensing application and your criminal record according to the appropriate law enforcement agency."

   
   

2. Question #6 of the application asks:

   
   

   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?

   
   

   Mr. Guy responded "Yes" he had. The question further requested the details in full concerning any arrests. In response, Mr. Guy answered:

   
   

   Arrested three (3)-times in Tampa, Florida, between 1972 and 1976 for D.W.I. (No convictions). Arrested in Detroit, Michigan in 1979 for intoxication and disorderly conduct - confined for detoxication, released upon paying fine. (See Attachment A)

   
   

   Attachment A which was by reference made a part of Mr. Guy's application was a police report from the City of Tampa, which Mr. Guy himself obtained in order to attach to his application. It stated:

   
   

   Date: 27 February 1981

   
   

   TO WHOM IT MAY CONCERN:

   In reference to your ( ) counter check ( ) letter ( ) telephone call dated 27 February 81 regarding Milton Franklin Guy.

   Please be informed that our files were searched by ( ) fingerprints ( ) name only, and indicate that a person by the same name has the following record with this Department.

   
   

   WHITE/MALE DATE OF BIRTH: 21 Nov 41

   21 Nov 49

   
   

   4 Feb 74 Trespass After Warning $25 + CC 13 Mar 74

   26 Mar 76 Deliver Amphetamines *

   23 Dec 77 Disorderly Conduct *

   
   

   *NOTE: For all cases without a disposition, please contact the Clerk of the Hillsborough County Circuit Court.

   
   

3. The Board of Real Estate has no knowledge about Mr. Guy's arrests, convictions, pardons or paroles except from the material supplied above by Mr. Guy. No evidence was introduced to show that Mr. Guy has a criminal record other than that which he disclosed on his application received by the Board of Real Estate on March 23, 1981.

   
   

4. There is no direct evidence for the following supposition but it appears that Mr. Guy's denial by the Board was based upon a misunderstanding about how much material he submitted in support of his application. The police report, which is Mr. Guy's Attachment A, is identical to those reports which the Board's staff itself usually acquires independently from the applicant. If the Board thought it followed its routine in this instance, it is understandable that it could believe Mr. Guy was not forthright in answering Question #6. That was not the case here.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

   
   

6. The requirements for licensure by the Florida Board of Real Estate are set out in Section 475.17, Florida Statutes (1981) which provides in pertinent part:

   
   

   1. 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 applicant for an active broker's license or a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations 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 of a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or

      suspended, 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 suspending 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 endangered by the granting of registration.

      
      

7. The rules of the Board further provide that an applicant is "required to disclose that he has been arrested or convicted of a crime, or if any criminal or civil proceedings [sic] is pending against him, or if any judgment or decree has been rendered against him in a case wherein the pleadings charged him with fraudulent or dishonest dealings," 2IV-2.27(2)(c), Florida Administrative Code.

   
   

8. As stipulated at the beginning of the proceedings the sole issue here is whether or not Mr. Guy made full disclosure required by the foregoing rule. According to all of the evidence he did.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Board of Real Estate enter a Final Order finding Petitioner qualified pursuant to Section 475.17(1) Florida Statutes (1981) to take the licensing examination provided for in Section 475.17(5), Florida Statutes (1981), to be licensed as a real estate salesperson in the State of Florida.

DONE and RECOMMENDED this 25th day of February, 1982, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

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 25th day of February, 1982.

ENDNOTE

1/ Bucell v. Department of Professional Regulation, Board of Real Estate, Case No. 81-552 (Florida Division of Administrative Hearings, Recommended Order June 15, 1981), adopted, 3 FALR 2025A (Florida Board of Real Estate, Final Order September 9, 1981).

COPIES FURNISHED:

Mr. Milton F. Guy

14404 North 18th Street Lutz, Florida 33549

Jeffrey A. Miller, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room 1601 Tallahassee, Florida 32301

C. B. Stafford Executive Director

Florida Real Estate Commission

400 West Robinson Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 81-001790

Orders for Case No: 81-001790