STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KAY M. HARVEY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-802

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal Subsection 120.57(1), Florida Statutes, hearing was conducted by Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. The date of the hearing was July 30, 1982, in Jacksonville, Florida. This Recommended Order is being entered after receipt and review of the transcript of proceedings which was filed with the Division of Administrative Hearings on August 16, 1982.

APPEARANCES

For Petitioner: Kay M. Harvey, pro se

2612 Sandra Lane

Jacksonville, Florida 32208

For Respondent: Jeffrey A. Miller, Esquire

Department of Legal Affairs The Capitol

Tallahassee, Florida 32301 ISSUES

The matters presented for consideration here concern the Petitioner's request to be licensed as a real estate salesperson and Respondent's denial of that request. In particular, Respondent has made its denial premised upon the authority set forth in Subsection 475.17(1), Florida Statutes, in that it has determined that Petitioner is not a person who is "honest, truthful, trustworthy, and of good character" and does not have "a good reputation for fair dealing" and moreover, that Petitioner has been guilty of conduct in Florida "which would have been grounds for revoking or suspending his (her) license under this chapter had the applicant then been registered." These matters relate to the answers provided by Petitioner to the Question No. 6 on the application where Petitioner acknowledged "accepting property with worthless check . . . ." A further ground for denial is that Petitioner did not answer Question No. 6 completely, in that another arrest was not disclosed in that answer. This would constitute an additional ground for license denial upon the former basis related in reference to Subsection 475.17(1), Florida Statutes, according to Respondent's allegation.

WITNESSES AND EXHIBITS

Kay M. Harvey, Petitioner, was the only witness presented. Ms. Harvey offered one (1) item of evidence which was received. Respondent had two (2) exhibits, both admitted.

FINDINGS OF FACT

1. On November 19, 1981, the Florida Real Estate Commission, then Board of Real Estate, received the application of Kay M. Harvey, Petitioner, asking that she be licensed to practice real estate as a salesperson. A copy of that application form may be found as Respondent's Exhibit No. 2, admitted into evidence.

   
   

2. Following the review, and by correspondence dated February 19, 1982, the application for licensure was denied. A copy of that denial statement may be found as Respondent's Exhibit No. 1, admitted into evidence. The basis for denial was as set forth in the Issues Statement to this Recommended Order, with the exception of the assertion that the answer to Question No. 6 was incomplete. That assertion was first offered at the final hearing in this cause.

   
   

3. In keeping with the opportunity expressed in the letter of denial, Petitioner requested a formal Subsection 120.57(1), Florida Statutes, hearing. The Director of the Division of Administrative Hearings was then requested to assign a Hearing Officer and the case was considered through the process of a formal hearing conducted on July 30, 1982.

   
   

4. Petitioner is a resident of Jacksonville, Florida, residing at 2612 Sandra Lane. She has lived in Jacksonville for the period of her life. She is now twenty-nine (29) years old and is employed by State Farm Mutual Insurance Company. She has held employment with that organization for ten and one half (10 1/2) years. During that time, she has held various clerical positions and at present is a rate clerk. In that capacity she calculates insurance premium rates and informs customers of their premium rates. Her position includes making decisions on the question of premium adjustment refunds for the benefit of customers. This responsibility includes a determination on the part of Petitioner on the subject of proper refund; however, Petitioner does not prepare the refund draft nor mail the refund check. Petitioner does not handle cash money in other facets of her employment.

   
   

5. On the topic of the answer to Question No. 6, which is the focus of the dispute between the parties, when asked to describe her understanding of the instructions given to an applicant who was answering Question No. 6, she stated, "I feel that it is asking me whether I've ever been arrested, and if I have, what it was for, and whether I was on parole or not."

   
   

6. On July 1, 1981, Petitioner was arrested for obtaining property by the issuance of a worthless check. The arrest occurred in Duval County, Florida, for an offense committed in that county. The amount of the check was two hundred eighty-eight dollars ($288.00), constituting a felony offense. Petitioner pled guilty to the offense and was placed on probation. The probation was successfully concluded on July 8, 1982, following restitution by Petitioner. This pertained to the circuit court case, Docket No. 81-5065CFR, Duval County, Florida.

7. In connection with the offense involved with the issuance of the two hundred eighty-eight dollar ($288.00) check, Petitioner purchased carpet from a merchant in Duval County, The Carpet Barn. When the check was processed, Petitioner was informed that she did not have sufficient funds to honor the check. This information was provided by an employee of the merchant. The check was then processed a second time and again Petitioner was informed that there was insufficient money in the account to allow the check to be negotiated. Petitioner was again told by the employee of The Carpet Barn that there were insufficient funds. Petitioner also received notice from her bank that there was insufficient money to honor the claim for a two hundred eighty-eight dollar ($288.00) payment.

   
   

8. The check was not suitable on the first occasion due to the Petitioner's failure to deduct certain service charges from her bank account, which service charges had the effect of reducing the amount of available funds to be spent for other purposes. The check was not honored on a second occasion due the submittal of another check issued by the Petitioner, which had been outstanding, causing the reduction of available monies in the Petitioner's checking account, such that there were insufficient funds to honor the two hundred eighty-eight dollar ($208.00) check when it was processed on the second occasion. In the face of the shortages, Petitioner was requested to provide money to balance the checking account and allow payment of the two hundred eighty-eight dollar ($288.00) check. This was not done. Petitioner then requested that she be given a month to place sufficient funds in the account to honor the claims by The Carpet Barn, and was granted that opportunity.

   
   

9. Following the second submission for payment, an employee of The Carpet Barn contacted the personnel office where Petitioner worked and spoke with the Personnel Manager about the subject of the outstanding check. Petitioner was disturbed by this contact and called the employee of The Carpet Barn and entered into an argument on the subjects of the check and that employee's contact with Petitioner's employer. The employee of The Carpet Barn indicated that the matter would be turned over to the local State Attorney for prosecution. Petitioner then contacted The Carpet Barn to try to arrange for the payment of the check and was told that they expected total payment and no settlement was arrived at, in view of the fact that Petitioner was suggesting payment of a lesser amount. The Petitioner and the merchant being unable to resolve their differences, Petitioner was prosecuted. She retained the carpet she had purchased and an amount of two hundred sixty or seventy dollars ($260.00 or

   $270.00) in her checking account, which represented the difference between the initial cost of the carpet and the charges in her account which had been deducted, causing the disallowance of the payment of the full amount of the two hundred eighty-eight dollar ($288.00) check.

   
   

10. At the time of the incident involving the check, Petitioner was making an annual salary of twelve to thirteen thousand dollars ($12,000.00-$13,000.00) and the merchant was repaid the amount of two hundred eighty-eight dollars ($288.00), in keeping with the terms of Respondent's probation. The repayment was made through installments over a period of eleven (11) months.

    
    

11. The other conditions of probation related to maintenance of her position in employment with the State Farm Mutual Insurance Company and submission of periodic reports were compiled with.

    
    

12. In 1975 or 1976, Petitioner, while married, wrote a check at a time when the bank upon which the funds were drawn did not believe that she had check writing privileges, in that the bank was not aware that a signature card had

    been executed by Petitioner, thereby entitling her to write checks on a joint account with her husband.

    
    

13. Prior to being notified by Respondent that it wished to inquire about the event of 1975 or 1976, Petitioner did not feel that any crime had been committed or that any criminal law investigative record of the events involving this particular check existed. At hearing, Petitioner did acknowledge that she had been charged with the offense in 1975 or 1976, related to checks or worthless checks, in the sense that she received a court summons about the check. Petitioner, by her explanation, was taken "downtown" and signed papers and was fingerprinted.

    
    

14. The signature card had in fact been signed and filed with the bank, but the bank, not being cognizant of that signature at the time the check was written, refused to accept it. On the date of court appearance, under summons, an official of the bank accompanied Petitioner to that proceeding and the matter was dismissed.

    
    

15. If Petitioner were licensed, one Terry Baker, licensed broker in Florida, has indicated that he might employ Petitioner.

    
    

16. Petitioner indicated that to guard against problems of the type which occurred with the check incidents, that she would be more careful in her calculations in protecting the interests of her clients as a real estate salesperson.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Those events related to the two hundred eighty-eight dollar ($288.00) check in 1981, and the check in 1975 or 1976, do not indicate that the Petitioner is dishonest, untruthful, untrustworthy or lacking in good character or lacking a good reputation for fair dealing, within the meaning of Subsection 475.17(1), Florida Statutes, either in the substance of those events or the failure of Petitioner to divulge the 1975 or 1976 incident in her answer to Question No. 6.

    
    

19. Petitioner has been guilty of conduct in this state which would be grounds for revoking or suspending her license had she been a registrant as this relates to the matters involved with the two hundred eighty-eight dollar ($288.00) check. In keeping with Subsection 475.25(1)(f), Florida Statutes, dealing with crimes against the laws of Florida, her plea of guilty to the 1981 worthless check charge and the court's action of placing her on probation, would be tantamount to a violation of that provision of Chapter 475, Florida Statutes. Consequently, the aspect of Subsection 475.17(1), Florida Statutes, which allows disqualification of an applicant for licensure if the applicant has been guilty of conduct that could be grounds for revocation or suspension of the license could be asserted against Petitioner and absent an acceptable lapse of time and subsequent good conduct and reputation, no license can be granted. Imposition of this standard would appear to bar Petitioner's request for license; however, Petitioner is entitled to licensure subject to payment of all fees and successful performance in the necessary examination, due to the fact that the application was received on November 19, 1981, and the denial of the application was made on February 19, 1982, some ninety-two (92) days beyond the time of

request. By law, and in particular, Section 120.60, Florida Statutes, an agency may not take more than ninety (90) days to review a license application, otherwise, the applicant is entitled to a default license. In this instance, the time period for review was exceeded and the discretionary basis for license denial may not prevail, either in the aspect of Subsection 475.17(1), Florida Statutes, more immediately discussed or formerly addressed.

Therefore, it is RECOMMENDED:

That a final order be entered which grants to Petitioner, Kay M. Harvey, the opportunity to be licensed as a real estate salesperson, upon her successful performance in the license examination phase of her application and upon the payment of necessary fees.

DONE and ENTERED this 31st day of August, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 31 day of August, 1982.

COPIES FURNISHED:

Ms. Kay M. Harvey 2612 Sandra Lane

Jacksonville, Florida 32208

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

Tallahassee, Florida 32301

Frederick Wilsen, Esquire Samuel R. Shorstein, Secretary Department of Professional Department of Professional Regulation Regulation

400 West Robinson Street 130 North Monroe Street Post Office Box 1900 Tallahassee, Florida 32301 Orlando, Florida 32802

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

Orlando, Florida 32802

Docket for Case No: 82-000802

Orders for Case No: 82-000802