STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA A. STORY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2644

) STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION )

(formerly Board of Real Estate), )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on August 19, 1982, 1/ in Ocala, Florida.

APPEARANCES

For Petitioner: Barbara A. Story, pro se

Post Office Box 772 Belleview, Florida 32620

For Respondent: Ralph Armstead, Esquire

Florida Real Estate Commission

400 West Robinson Street, Suite 12 Orlando, Florida 32801

ISSUE

Whether or not the Petitioner, Barbara A. Story, is eligible to sit for the Florida Real Estate Commission's licensure examination.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, post-hearing memoranda and exhibits, and the entire record compiled herein, the following relevant facts are found.

1. On or about July 26, 1981, Petitioner, Barbara A. Story, filed an application for licensure as a real estate salesperson with the Respondent, Department of Professional Regulation, Board of Real Estate. By letter dated September 28, 1981, Randy Schwartz, Respondent's counsel, advised Petitioner that the Respondent, at its duly noticed meeting of September 23, 1981, denied Petitioner's application for licensure. That letter recited that the specific reason for the Respondent's actions was baked on Petitioner's answer to question six (6) on the licensing application and her criminal record.

2. In this regard, evidence reveals and Petitioner's application reflects that Petitioner was convicted in the Southern District of Florida (West Palm Beach), on September 8, 1978, of embezzlement of monies from a bank, in violation of Title XVIII, United States Code, 656. Petitioner was sentenced by the Honorable C. Clyde Atkins on that date, pursuant to the split-sentence provision of Title XVIII, United States Code, 3651, in that she was to be confined in a jail-type institution for a period of one (1) month, and thereafter, the remainder of the sentence of confinement [one (1) year] was suspended. Upon discharge from incarceration, Petitioner was to be placed on probation for a period of five (5) years under the special condition that she make restitution for the monies embezzled. Jurisdiction of that case was transferred to the Middle District of Florida, and on March 29, 1982, Petitioner was terminated from probation supervision. Robert E. Lee, a chief U.S. probation officer, who supervised petitioner while she was under the supervision of the subject office as a probationer, indicates that Petitioner reflected a favorable attitude toward her probation officer, remained gainfully employed and abided by all the rules of probation.

   
   

3. Petitioner has never been arrested since her conviction in 1978, and has received only one (1) traffic citation during December of 1981. Petitioner has been continuously employed since her conviction and is presently a secretary/receptionist where she is in charge of and controls office business for Mobile Craft Wood Products in Ocala, Florida. Petitioner has been in charge of processing cash sales for the past four (4) years. Petitioner is presently making restitution to the savings and loan association that she embezzled.

   
   

4. Charles Demenzes, a realtor/broker who owns Demenzes Realty Inc., has known Petitioner approximately one (1) year. Mr. Demenzes spoke highly of Petitioner and was favorably impressed with her desire to become licensed as a real estate salesperson. Mr. Demenzes is hopeful that Petitioner will be afforded an opportunity to sit for the licensure examination such that she can join his sales force, if she successfully passes the examination.

   
   

5. Respondent takes the position that Petitioner, having been convicted of the crime of embezzlement, which involves moral turpitude and therefore is ineligible to sit for the Respondent's licensure examination. In this regard, counsel for Respondent admits that the Board, when acting upon Petitioner's application for licensure, did not consider the fact that Petitioner has been released from probation supervision inasmuch as that factor did not exist at the time Petitioner made application for licensure.

   
   

6. Character letters offered by Petitioner were highly complimentary of Petitioner's reputation and abilities as an employee. (Petitioner's Composite Exhibit No. 1.)

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. The authority of the Respondent is derived from Chapter 475, Florida Statutes.

10. Chapter 475.25, Florida Statutes, authorizes the Board to review and issue, grant or deny applications based on an applicant's responses to questions in the application. Section 475.17(1), Florida Statutes, provides in pertinent part that an applicant must be honest, truthful, trustworthy and of good character and shall have a good reputation for fair dealing. Evidence introduced herein reveals that the Petitioner has been convicted of the crime of embezzlement which is a crime involving moral turpitude. See State v. Snyder,

187 So.2d 381 (Fla. 1939). However, unlike the situation in Cirnigliaro v. Florida Police Standards and Training Commission, 409 So.2d 80 (Fla. 1st DCA 1982), the licensing statute in question does afford a provision for consideration of instances for rehabilitation of an applicant's character. Based on the provision which exists in Chapter 475.17(1), Florida Statutes, it appears that the Petitioner is an applicant who should benefit from favorable consideration based on her character exemplified since her conviction for embezzlement and her subsequent release from probation supervision. Petitioner was not released from probation supervision at the time of her application for licensure with the Respondent. Petitioner has now been released from probation supervision and other record evidence reflects that her character has been rehabilitated. It is, therefore, concluded that Petitioner is now eligible for licensure as a real estate salesperson pursuant to the guides of Chapter

475.17(1), Florida Statutes, and her application should, therefore, be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is hereby

RECOMMENDED:

That the Respondent enter a final order granting Petitioner's application for licensure as a real estate salesperson.

DONE and ENTERED this 13th day of October, 1982, in Tallahassee, Florida.

JAMES E. BRADWELL, 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 13th day of October, 1982.

ENDNOTE

1/ The hearing officially closed on September 13, 1982, the date the parties were afforded leave to submit post-hearing memoranda. The parties have submitted post-hearing memoranda which were considered by me in preparation of this Recommended Order. To the extent that the parties' proposed findings etc., are not incorporated in this Recommended Order, they were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

COPIES FURNISHED:

Barbara A. Story Post Office Box 772

Belleview, Florida 32620

Ralph Armstead, Esquire Florida Real Estate Commission

400 West Robinson Street, Suite 12 Orlando, Florida 32801

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

C. B. Stafford, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Frederick Wilsen, Esquire Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Docket for Case No: 81-002644

Orders for Case No: 81-002644