STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL DE CARDENAS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2148

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for hearing before Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings on December 29, 1981, in Miami, Florida.

Petitioner, Manuel de Cardenas, appeared on his own behalf; and Jeffrey A. Miller, Assistant Attorney General, appeared on behalf the Respondent, Department of Professional Regulation, Board of Real Estate.

Petitioner applied for licensure as a real estate salesman. By letter dated May 27, 1981, he was advised that his application would not be processed further and was denied administratively. By letter dated July 23, 1981, he was advised that the Board of Real Estate had denied his application for licensure on July 21, 1981. Petitioner requested a hearing on that denial. Accordingly, the issue for determination is whether Petitioner's application for licensure as a real estate salesman should be approved.

Petitioner testified on his own behalf. Additionally, Respondent's Exhibits numbered 1 and Composite 2 were admitted in evidence.

FINDINGS OF FACT

1. Petitioner was approved to take the real estate salesman examination on November 24, 1980, a Monday. This was the fourth time he would take the examination, since he had failed it on three previous occasions. He was scheduled to take a "crash course" on the Thursday, Friday, Saturday, and Sunday prior to the Monday exam. He failed to attend that course, since he felt sick.

   
   

2. On Monday morning Petitioner went to the exam site, turned in his admission slip, showed his driver's license for identification, obtained an examination folder, reviewed the examination questions, determined he could not pass the exam, and walked out of the examination room with his copy of the examination. An investigation ensued immediately. Two days later Petitioner signed an affidavit, before investigator Myers, swearing that he was not at the exam site but was at work all day with his employer Phil Tracy on November 24; that he had returned his admission slip to the Board in Orlando two days before the exam with his request to take the examination at a later date; that he did not have a copy of the examination; and that his driver's license was with him

   at work on the day of the examination. At Petitioner's request, Phil Tracy executed an affidavit that same day swearing that Petitioner was at work on the morning of the 24th and further swearing that Petitioner is truthful and honest. Unfortunately for Petitioner, in his affidavit, he stated that he would take a polygraph test to verify his statements. After he took the polygraph test and on January 22, 1981, Petitioner executed his second affidavit admitting that he had stolen the examination.

   
   

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

4. Section 475.17(1), Florida Statutes, sets forth the qualifications for practice as a real estate salesman and requires that:

   
   

   An applicant for licensure who is a natural person shall be . . . honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. An applicant for . . . 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 . .

   . 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.

   
   

   Further, Section 475.25(1)(a), Florida Statutes, authorizes the Respondent to deny an application for licensure if it finds that the applicant has violated any provision of Section 475.42. The making of a false affidavit intended for use as evidence by or before the Board, a member of the Board, or any authorized representative of the Board is specifically forbidden by Section 475.42(1)(g), Florida Statutes.

   
   

5. In the case act bar, Petitioner stole a copy of the real estate examination, fabricated an alibi, submitted a false affidavit to investigator Myers, and solicited his "alibi witness" to submit a false affidavit to Myers. Petitioner only admitted his conduct after taking the polygraph examination.

   
   

6. Petitioner's own testimony establishes his knowing submission of false affidavits to the Board's investigator, which act is sufficient by itself upon which to base a denial of Petitioner's application. More importantly, Petitioner has clearly established that he lacks honesty, truthfulness, and that good character required for licensure as a real estate salesman, even if he were able to successfully complete the licensure examination. Petitioner has

presented no evidence to excuse his conduct or to indicate his rehabilitation or "subsequent good conduct and reputation." Accordingly, Petitioner has failed to carry his burden of proof to show entitlement to licensure.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED THAT:

A final order be entered denying Petitioner's application for licensure as a real estate salesman.

RECOMMENDED this 18th day of February, 1982, in Tallahassee, Florida.

LINDA M. RIGOT

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 18th day of February, 1982.

COPIES FURNISHED:

Mr. Manuel de Cardenas, Jr.

270 Buttonwood Drive

Key Biscayne, Florida 33149

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

Tallahassee, Florida 32301

Frederick H. Wilsen, Esquire Assistant General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Samuel R. Shorstein Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Carlos B. Stafford Executive Director Board of Real Estate

Department of Professional Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-002148

Orders for Case No: 81-002148