STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DWAYNE LEE HILL, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1575

) STATE OF FLORIDA, 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, James E. Bradwell, held a public hearing in this case on August 16, 1982, in Melbourne, Florida. A transcript of the proceedings was received by the Division of Administrative Hearings on August 30, 1982. The parties were afforded leave through September 20, 1982, to submit post-hearing memoranda which were received and considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: George Maxwell, Esquire

ROSSETTER, MAXWELL & HOLLIDAY, P.A.

268 North Babcock Street Melbourne, Florida 32935

For Respondent: Lawrence Gendzier, Esquire

Florida Real Estate Commission

400 West Robinson Street, Suite 212 Orlando, Florida 32801

BACKGROUND

The Petitioner, Dwayne Lee Hill, applied for licensure as a real estate salesman with the Respondent, Florida Real Estate Commission (herein Respondent or Commission). The Commission denied the application and notified Petitioner of his right to request a Section 120.57(1), Florida Statutes, hearing.

Petitioner requested a hearing and the matter was forwarded to the office of the Division of Administrative Hearings on or about June 7, 1982, for the conduct of further administrative proceedings.

By notice dated July 12, 1982, the final hearing was scheduled for August 16, 1982.

On behalf of the Petitioner, testimony was elicited from Dwayne Lee Hill, Thomas Via and Petitioner's counsel, George Maxwell.

Respondent's Exhibit No. 1 was entered into evidence.

ISSUE

Whether Petitioner has demonstrated that he is honest, truthful, trustworthy, of good character and has a good reputation for fair dealing as required by Section 475.17(1), Florida Statutes.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, a consideration of the post-hearing memoranda and the entire record compiled herein, the following relevant facts are found.

   
   

2. On February 13, 1982, Petitioner filed an application for licensure as a real estate salesman with the Commission. Petitioner, prior to moving to Florida, was employed as a deputy sheriff for the Los Angeles County (California) Sheriff's Department for approximately seven (7) years. He was honorably discharged from the Sheriff's Department. By letter dated April 27, 1982, the Commission denied Petitioner's application, stating therein that the specific reasons for its (the Commission's) actions were based on his answer to question number six (6) of the licensing application.

   
   

3. The application form for licensure as a real estate salesman includes a question number six (.6), which inquires:

   
   

   Have you ever been arrested for, or charged with, the commission of an offense against the laws of any munici- pality, state or nation, including traffic offenses . . . without regard

   to whether convicted, sentenced, pardoned or paroled?

   
   

4. The Petitioner responded "yes" to the inquiry. The question goes on to request: "If yes, state details, including the outcome in full."

   
   

5. In response to this inquiry, Petitioner submitted the following: "Possession of a counterfeit substance, not found guilty, terms of probation, expunged record."

   
   

6. Respondent's Exhibit No. 1, a certified copy of judgment and sentence, shows that Petitioner pled nolo contendere to the charge of sale of counterfeit controlled substance, Section 817.563, Florida Statutes, and on February 12, 1982, was sentenced to five (5) years of probation with the Florida Department of Corrections. Adjudication of guilt was withheld.

   
   

7. Petitioner is presently serving the five (5) years of probation. (Tr. pp. 15-16) Petitioner acknowledges that the court informed him as to the charges against him in open court. (Tr. p. 26) Petitioner claims that he pled no contest to possession of a counterfeit controlled substance. Finally, Petitioner admitted that the arrest record for sale of a counterfeit controlled substance was not expunged. (Tr. p. 22) Petitioner has appealed the order of court on constitutional grounds and stated his belief that expungement will be granted upon satisfactory completion of his probationary term. At present however, his record relative to that charge has not been expunged.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapters 120.57(1) and 120.60, Florida Statutes.

   
   

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

   
   

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

    
    

11. Section 475.17(1), Florida Statutes, provides that: an applicant for licensure who is a natural person shall be l8 years of age, a bona fide resident of the state, HONEST, TRUSTWORTHY, TRUTHFUL AND OF GOOD CHARACTER (emphasis added), and shall have a reputation for fair dealing.

    
    

12. The rules of the Florida Real Estate Commission provide that an applicant is required:

    
    

    to disclose that he has been arrested or convicted of a crime, or if criminal or civil proceeding is pending against him, or if any

    judgment or decree has been rendered against him in a case wherein the pleading charged him with fraudulent or dishonest dealing. Rule 21V-2.27 (2)(c), Florida Administrative Code.

    
    

13. Petitioner, by submitting the foregoing response to question number six (6) of the licensing application, failed to fully disclose the details as required and was less than truthful when he indicated that the record was expunged when it was not. In this regard, Petitioner, a former deputy sheriff, appears to have been fully aware of the contents of his answers and the plea he entered with respect to the above-referred charges. Petitioner's failure to fully disclose the circumstances surrounding his arrest and the disposition thereof, failed to establish that he is honest, trustworthy, truthful and of good character as required by Chapter 475.17(1), Florida Statutes. Additionally, Petitioner, by saying that he pled nolo contendere to possession of counterfeit substance instead of the sale of a counterfeit controlled

substance, a crime of a more serious nature, also reflects conduct indicative of an attempt to deceive and is further evidence of a failure to demonstrate that he (Petitioner) is honest, trustworthy, truthful and of good character, as required by Chapter 475.17(1), Florida Statutes. It is so concluded.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED:

That the Florida Real Estate Commission enter a Final Order denying Dwayne Lee Hill's application for a real estate license pursuant to Subsection 475.17(1), Florida Statutes.

DONE and RECOMMENDED this 19th 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 19th day of October, 1982.

ENDNOTE

1/ To the extent that the proposed findings contained in said memoranda are not incorporated in this Recommended Order, said proposed findings and conclusions were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

COPIES FURNISHED:

George Maxwell, Esquire ROSSETTER, MAXWELL &

HOLLIDAY, P.A.

268 North Babcock Street Melbourne, Florida 32935

Lawrence Gendzier, Esquire Florida Real Estate Commission Suite 212

400 West Robinson Street 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

William M. Furlow, Esquire Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Docket for Case No: 82-001575

Orders for Case No: 82-001575