STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN KATZ, )

)

Petitioner, )

)

vs. ) CASE NO. 82-001

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on January 26, 1982, in Miami, Florida.

APPEARANCES

For Petitioner: Alan D. Katz in pro use

1950 South Ocean Drive Hallendale, Florida 33309

For Respondent: Jeffrey A. Miller, Esquire

Assistant Attorney General The Capitol-Room 1601

Tallahassee, Florida 32301 BACKGROUND

Petitioner, Alan D. Katz, filed an application for licensure as a real estate salesman on April 10, 1981, with Respondent, Department of Professional Regulation, Board of Real Estate. On July 23, 1981, Respondent advised Petitioner that his application was denied on the ground he had a "criminal record" and therefore had not shown himself to be "honest, truthful, trustworthy, and of good character, and (having) a good reputation for fair dealing" within the meaning of Subsection 475.17(1), Florida Statutes.

Thereafter, Respondent requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the denial of his application. The matter was transmitted to the Division of Administrative Hearings on December 31, 1981, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated January 8, 1982, the final hearing was on January 26, 1982, in Miami, Florida.

At the final hearing, Petitioner testified on his own behalf and offered Petitioner's Composite Exhibit 1, which was received into evidence. That exhibit consists of three letters attesting to Petitioner's honesty, integrity and good character. Respondent offered Respondent's Exhibit 1, a copy of the application, which was received into evidence.

The transcript of hearing was filed on February 15, 1982. The parties waived their right to file proposed findings of fact and conclusions of law.

The issue herein is whether Petitioner's application for licensure as a real estate salesman should be granted.

Based upon the entire record, the following findings of fact are determined.

FINDINGS OF FACT

1. Petitioner, Alan D. Katz, filed an application for licensure as a real estate salesman on April 10, 1981, with Respondent, Department of Professional Regulation, Hoard of Real Estate.

   
   

2. Question six of the application requires the applicant to answer whether he had ever been arrested without regard to whether he was convicted, sentenced, pardoned or paroled. Petitioner responded in the affirmative and attached a list of six prior arrests. All arrests occurred between the years 1958 and 1969. They included possession of marijuana (less than one gram) -1958; attempted petty larceny (misdemeanor) -1962; vagrancy- 1964; embezzlement and larceny-1965; flight to avoid prosecution-1965; and improperly filling out an application for a work card-1969. All charges were dismissed or dropped except the possession of marijuana and attempted petty larceny. For these offenses Katz was fined $50 and placed on probation, respectively. Petitioner has had no arrests since 1969. 1/

   
   

3. After reviewing the application, Respondent concluded that by virtue of the response to question six Petitioner had failed to demonstrate that be was "honest, truthful, trustworthy and of good character, and (had) a good reputation for fair dealing." It denied the application by letter dated July 23, 1981. The denial precipitated the instant hearing.

   
   

4. Petitioner, 46-years old, is currently unemployed. He now considers Hallandale, Florida, to be his permanent home. He has worked in various phases of the real estate business since 1964. For the last eight years, his specialty has been vacation time sharing. Most recently, he was employed in Europe by Royal Aloha Vacation Club where he was responsible for investing 100,000 pounds (approximately $225,000 U.S. currency) on behalf of his employer to establish its European time-sharing operations, and in "setting-up" sales for its broker. Prior to that he was employed in Las Vegas, Nevada, by Passport to Pleasure in the unit acquistion phase of its operations. In that capacity, he was entrusted with dealing in small amounts of cash (less than $5,000) and making deposits on behalf of his employer. Before that, he worked in real estate sales for one of Nevada's largest developers.

   
   

5. If the application is granted, Petitioner will associate with a broker and specialize in resort time sharing. He has been offered other real estate employment opportunities (e.g., General Development Corporation) but wishes to restrict his activities to the time-sharing field.

   
   

6. Letters offered into evidence as Petitioner's Composite Exhibit 1 attest to Katz's honesty, integrity and ability. Although Petitioner has been arrested on at least six occasions, all cases were dismissed except for two minor misdemeanor charges, the last occurring in 1963. He attributes those arrests to immaturity during the early part of his adulthood. His conduct since

   1969 is unblemished and sufficient time has lapsed to rehabilitate himself and gain the necessary maturity to operate successfully and honestly in the real estate profession.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

   
   

8. Subsection 475.17(1), Florida Statutes, provides in part:

   
   

   1. An applicant for licensure. . . shall be

      . . . honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing . . . If an applicant has been denied registration. . . because of any conduct or practices which would have warranted a like result under this chapter. . . 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 likely be endangered by the granting of registration.

      
      

9. During the course of the hearing Respondent sought to clarify the basis for denying the application. As finally clarified, the grounds underpinning the denial are as follows: (1) the accumulation of all arrests between the years 1950 and 1969 constituted a sufficient cloud upon Petitioner's character and reputation so as to trigger the provisions of Subsection 475.17(1) supra, and

   (2) the arrest and conviction in 1963 was for a misdemeanor (petty larceny) involving moral turpitude or fraudulent or dishonest dealing within the meaning of Subsection 475.25(1)(f), Florida Statutes. Each ground will be dealt with separately.

   
   

10. In its letter of denial, Respondent advised Petitioner that because of his "criminal record" as reflected in the answer to question six, Petitioner had failed to establish the requisite traits required by Subsection 475.17(1), supra. The "criminal record" involves two misdemeanor convictions, one occurring almost twenty-five years ago and for which a $50 fine was imposed, and the other occurring in 1963 for which probation was given. All other charges were dismissed or dropped. While Petitioner's record understandably caused initial concern on the part of the Board, and required further explanation by Petitioner to justify licensure, the two convictions are minor in nature and do not warrant denial of the application. This is particularly true given the unblemished record of Petitioner since 1969, his honesty in dealing with the Board, his sincere desire to be licensed and to put his skills to use, and attestations of good character, reputation and honesty from three individuals.

    
    

11. The second basis for denial was not included in the letter of denial dated July 23, 1981, and Petitioner was not apprised that he must overcome that objection. See Rule 28-6.08 (2), Florida Administrative Code. Accordingly, the contention that Petitioner was convicted of a crime in 1963 (misdemeanor-petty larceny) involving moral turpitude or fraudulent or dishonest dealing need not

    be considered in this proceeding. Cf. Robins v. Florida Real Estate Commission,

    162 So.2d 535 (Fla. 3rd DCA 1964). Even if the issue was properly raised, there has been a sufficient lapse of time since the incident occurred, and Petitioner's subsequent good conduct and reputation over the ensuing years dispel any doubt that the public and investors may be endangered by the granting of the registration.

    
    

12. Petitioner having established that he is honest, truthful, trustworthy, and of good character and has a good reputation for fair dealing, and Respondent having failed to contradict this showing, the application for licensure as a real estate salesman should be granted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Alan D. Katz for licensure as a real

estate salesman be GRANTED.

DONE and ENTERED this 22nd day of February, 1982, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

1230 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1982

ENDNOTE

1/ Reference was made by Respondent to another arrest of Petitioner in 1966 allegedly for interstate transportation of stolen property which was purportly dismissed by the Federal Government. However, a record of this arrest was never received into evidence, and accordingly, it need not be considered.

COPIES FURNISHED:

Mr. Alan D. Katz

1950 South Ocean Drive Hallendale, Florida 33309

Jeffrey A. Miller, Esquire Assistant Attorney General The Capitol-Room 1601

Tallahassee, Florida 32301

Docket for Case No: 82-000001

Orders for Case No: 82-000001