STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BERNARD SCHANDLER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-710

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on June 30, 1982, in Hollywood, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. The parties were represented by:

For Petitioner Eli Breger, Esquire

17200 Northeast 19th Avenue

North Miami Beach, Florida 33162

For Respondent Jeffrey Miller, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Room 1602 Tallahassee, Florida 32301

This matter arose on Respondent's denial of Petitioner's application for licensure as a real estate salesman, pursuant to Sections 475.17 and 475.25, Florida Statutes (F.S.). The parties submitted proposed findings of fact which are incorporated herein to the extent they are relevant and consistent with the evidence.

FINDINGS OF FACT

1. On or about September 20, 1977, Petitioner entered a plea of guilty to the charge of failing ". . . to collect, truthfully account for, and pay over. .

   ." withheld taxes to the United States, in violation of Title 26, U.S.C., Section 7215. Petitioner was adjudicated guilty and placed on probation for a period of one year, during which time he was to make restitution. Petitioner did in fact make restitution after his probation was extended.

   
   

2. Petitioner was discharged from probation in the above case on or about February 27, 1979.

   
   

3. Section 7512 of the Internal Revenue Code, under which Respondent was convicted, requires the collection of Federal Withholding Taxes from the wages of employees and the deposit of same into a separate bank account in trust for the United States. Violation of Section 7512 constitutes a misdemeanor.

4. Petitioner owned and operated Wolfie's Restaurant in North Miami Beach for approximately 17 years. His testimony established that the business became indebted and he subsequently intentionally failed to pay some $46,000 in FICA and withholding taxes resulting in the above conviction.

   
   

5. It should be noted that Petitioner filed the appropriate returns with the Internal Revenue Service and freely admitted his liability for taxes due and owing. The charges filed against him related only to his failure to pay said taxes and did not allege any attempt to conceal his liability.

   
   

6. Petitioner was also charged with destruction of personal property in 1978, a misdemeanor. Petitioner pled guilty, adjudication was withheld, and he was required to pay costs of the action. This charge was not disclosed on Petitioner's application. Petitioner did not, however, intentionally withhold this information, but understood the application to require such information only where he had been formally arrested.

   
   

7. Petitioner is currently employed at the Tiffany Hotel in Miami Beach. Prior to that, he operated the Lovin Oven Bakery in Miami.

   
   

8. Petitioner presented two character witnesses who testified as to their personal business dealings with the Petitioner as well as Petitioner's general reputation in the business community. Their testimony established that Petitioner is regarded as honest and truthful.

   
   

   CONCLUSIONS OF LAW

   
   

9. Subsection 475.25(1), F.S., provides in part:

   
   

   1. The board may deny an application for licensure or renewal, may suspend a license for a period not exceeding 10 years, may revoke a license, may impose an administrative fine not to exceed

      $1,000 for each count or separate offense, or may issue a reprimand, if it finds that the licensee or applicant has:

      * * *

      (f) Been found guilty, regardless of whether adjudication was withheld, of a crime against the laws of this state or any other state or of the United States, which crime directly relates to the ac- tivities of a licensed broker or sales- man or involves moral turpitude or fraud- ulent or dishonest dealing. . . .

      
      

10. The above provisions empower Respondent to deny licensure when the applicant has been guilty of fraudulent or corrupt conduct. Petitioner's tax conviction resulted from his inability to pay, and the destruction of property charges resulted from a minor altercation. Neither of these misdemeanors could be interpreted as crimes of corruption or moral turpitude.

11. Subsection 475.17(1), F.S., provides:

    
    

    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 char- acter and shall have a good reputation for fair dealing. An applicant for an active broker's license or a saleman's license shall be competent and qualified to make real estate transactions and conduct ne- gotiations there for with safety to invest- ors and to those with whom he may under- take a relationship of trust and confidence. If the applicant has been denied registra- tion or 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 state 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 ap- plicant then been registered, the appli- cant shall be deemed not to be qualified, unless, because of lapse of time and sub- sequent 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.

       
       

12. The above provision is aimed at insuring that an applicant can reasonably be expected to conduct real estate transactions in the public interest. Petitioner established through his testimony and that of his character witnesses that he has a good reputation for honesty in business and that he is a person of good moral character. He should, therefore, be permitted to pursue licensure as a real estate salesman.

RECOMMENDATION

From the foregoing, it is

RECOMMENDED that Respondent enter a Final Order granting the petition.

DONE and ENTERED this 1st day of September, 1982, in Tallahassee, Florida.

R. T. CARPENTER Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

FILED with the Clerk of the Division of Administrative Hearings this 1st day of September, 1982.

Docket for Case No: 82-000710

Orders for Case No: 82-000710