STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERBERT GIMELSTOB, )

)

Petitioner, )

)

vs. ) CASE NO. 82-285

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, Florida Real )

Estate Commission, )

)

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 July 22, 1982, in Coral Gables, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Angelo Ali, Esquire

Suite 400 Roberts Building

28 West Flagler Street Miami, Florida 33130

For Respondent: Lawrence S. Gendzier, Esquire

Assistant Attorney General Department of Legal Affairs Room 212, 400 West Robinson

Orlando, Florida 32801

The issue for determination in this case is whether the Petitioner Herbert Gimelstob is entitled to licensure by the Florida Real Estate Commission as a real estate salesman.

At the final hearing, Francis V. Ritter and Herbert Gimelstob testified for the Petitioner and Respondent's Exhibit No. 1 was offered and admitted into evidence. By agreement of the parties, a post-hearing affidavit of Theodore T. Edwards, Director, U.S. Parole and Probation Office, North New Jersey, is admitted as Petitioner's Exhibit No. 1.

Proposed Findings of Fact and Conclusions of Law have been submitted by the parties. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here.

FINDINGS OF FACT

1. On January 19, 1981, Petitioner Gimelstob filed an application for licensure as a real estate salesman with the Florida Real Estate Commission. By letter dated April 28, 1981, the Commission denied Petitioner's application, stating that the specific reason for the Commission's denial was based on his answer to question six of the licensing application and his criminal record.

   
   

2. The application form for licensure as a real estate salesman includes question six which inquires:

   
   

   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. . .without regard to whether convicted, sentenced, pardoned or paroled?

   
   

3. In response to this inquiry, the Petitioner answered "Yes". The question goes on to request: "If yes, state details including the outcome in full."

   
   

4. The Petitioner revealed on his application form that he was convicted of assault on a federal officer and constructive possession of stolen merchandise for which he was sentenced to 7 1/2 years in prison and fined

   $10,000. Following 2 1/2 years of confinement, the Petitioner was paroled and successfully completed his parole on July 19, 1978.

   
   

5. On June 8, 1972, the Petitioner was convicted on counts three and four of a four count indictment. Count three charged that the Petitioner knowingly possessed goods which had been stolen from interstate shipment and count four involved an assault and interference with a special agent of the Federal Bureau of Investigation while engaged in the performance of his duties.

   
   

6. On December 18, 1973, the Petitioner was adjudged guilty on count one of conspiring to remove merchandise knowing the same to have been unlawfully removed from custody and embezzling and transporting stolen goods for interstate shipment.

   
   

7. The Petitioner was sentenced to 7 1/2 years in the federal penitentiary and fined $10,000. Although tried separately, the convictions set forth above were apparently part of a single multi-count indictment involving one transaction.

   
   

8. In May, 1961, the Petitioner was arrested but not convicted for receiving stolen goods. The Petitioner did not list this arrest on his application due to the length of time since the occurrence and his confusion over what the question was intended to cover. The Petitioner did not intend by his answer to mislead the Commission regarding his prior record.

   
   

9. Since his parole, the Petitioner has worked diligently to overcome his past problems. He is highly regarded by those with whom he worked in New Jersey prior to moving to Florida. In particular regard to financial matters and trust of monies, the Petitioner presently enjoys an excellent reputation in the financial community as a successful and honest businessman.

10. Mr. Theodore Edwards, the Petitioner's parole officer, described the Petitioner as "completely rehabilitated". This view is also apparently shared by the Parole Board which granted the Petitioner an early discharge from parole.

    
    

11. Since his release from prison the Petitioner has raised two children from his first marriage and also remarried. His daughter has recently graduated from Indiana University and his son attends Miami-Dade Junior College.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this dispute.

    
    

13. Pursuant to Section 475.17(1), Florida Statutes (1981), an applicant for licensure as a real estate salesman must be, inter alia, honest, truthful, trustworthy and of good character and shall have a good reputation for fair dealing. Additionally, if an applicant has been guilty of practices in this state or elsewhere which would have been grounds for revoking or suspending a license under Chapter 475, the applicant shall be deemed not to be qualified, unless, because of lapse of time and subsequent good conduct and reputation, it appears that the interest of the public and investors will not likely be endangered by the granting of registration.

    
    

14. Assuming that the crimes for which the Petitioner was convicted constitute grounds in Florida for revoking or suspending a real estate license, the uncontradicted testimony produced at the final hearing and in the post- hearing exhibit, demonstrate that the Petitioner is rehabilitated and enjoys an excellent reputation in the financial community. Due to the lapse of time since his convictions and his successful efforts at rebuilding his life, the likelihood that Petitioner would abuse a position of trust with potential investors is unlikely. The Petitioner's reputation for honesty and good character were not rebutted and, accordingly, pursuant to Section 475.17(1), Florida Statutes (1981), the Petitioner Gimelstob should be licensed as a real estate salesman. Also see Section 112.011, Florida Statutes, setting forth a general state policy concerning the professional licensing of convicted felons.

RECOMMENDATION

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

That the Respondent Florida Real Estate Commission enter a final order granting Petitioner Herbert Gimelstob's application for a real estate license.

DONE and ORDERED this 9th day of September, 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 9th day of September, 1982.

COPIES FURNISHED:

Angelo Ali, Esquire

Suite 400 Roberts Building

28 West Flagler Street Miami, Florida 33130

Lawrence S. Gendzier, Esquire Assistant Attorney General Department of Legal Affairs Room 212, 400 West Robinson

Orlando, Florida 32801

Frederick H. Wilsen, Esquire Department of Professional Regulation State Office Building

400 West Robinson Post Office Box 1900

Orlando, Florida 32802

Carlos B. Stafford Executive Director

Florida Real Estate Commission 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: 82-000285

Orders for Case No: 82-000285