on March 9, 1983, at Orlando, Florida. The issue for determination is whether Petitioner was properly denied a license as a real estate salesman because he failed to meet the criteria set forth in Section 475.17(1), Florida Statutes (1981).
For Petitioner: Richard H. Hyatt, Esquire
For Respondent: Lawrence S. Gendzier, Esquire
Petitioner requested a formal hearing under Section 120.57(1), Florida Statutes (1981), to review a decision of the Florida Real Estate Commission on October 19, 1982, denying him licensure as a salesman based upon his false answer to Question 6 of the licensing application form and his criminal record which he denied in that answer.
Evidence on behalf of the Petitioner included the testimony of the Petitioner himself, Dominic D. Magnaghi, and Carol E. Viau, along with Petitioner'S Exhibits 1 and 2. Respondent's case consisted exclusively of Respondent'S Exhibits A through D.
Petitioner, Keith T. Loggins, on August 13, 1982, under oath, signed an application for licensure as a real estate salesman of the Florida Real Estate
Commission. This application was filed with the Florida Real Estate Commission on September 1, 1982.
Question 6 on that form states:
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 (but not parking, speeding, inspection or traffic signal violations), without regard to whether convicted, sentenced, pardoned or paroled?
to which he answered, "No." This answer was false.
Petitioner was arrested by the Orange County Sheriff's Office on November 14, 1972, on a charge of grand larceny in connection with a burglary and breaking and entering. Pursuant to a plea of guilty, he was placed on probation for five years.
On May 23, 1974, Petitioner was arrested by the Osceola County Sheriff's Office on a charge of embezzlement, but was not tried, and the case was dropped. Petitioner denies any knowledge of possible grounds for this arrest.
In May, 1975, Petitioner was convicted of a probation violation, and his probation was modified to include four months' confinement in county jail, and five months later, he was arrested for grand theft by fraud on insufficient fund check, convicted of grand larceny, and sentenced to serve five years in Florida State Prison.
Thereafter, on August 6, 1975, Petitioner was convicted upon his pleas of guilty in Circuit Court for Orange County, Florida, on two separate cases involving obtaining property by worthless check written in March, 1975, one a felony count and one a misdemeanor count. He was sentenced to four years' imprisonment on the felony and one year on the misdemeanor, the terms to run concurrently.
On September 29, 1975, he was placed on probation for seven years to start upon his release from prison, which took place on August 1, 1978. His probation, which should have run to the end of July, 1985, was, however, terminated, and Petitioner was discharged on October 20, 1982, almost three years early because of the recommendations of his probation officer, Connie Reed, with the approval of her supervisor, Mr. Charles L. Steen.
Since his release from prison in August, 1978, Petitioner has held numerous jobs ranging from that of a laborer to that of assistant manager of a motel. In each instance, he left the position of his own volition to improve his income or working hours. He has never been fired nor have there ever been any complaints about his work. He has held positions of trust and of responsibility and in several cases has had the requirement to handle, unsupervised, substantial sums of money. No shortages were discovered.
In his last two positions, Petitioner has been a salesperson of time- sharing resort condominiums, as a salaried employee of the developer. He is very
cautious in his approach and delivery to prospects because of the close scrutiny given this type of operation. Both his current and a prior supervisor indicate he has performed his duties satisfactorily, and they have not received any complaints about the Petitioner. Petitioner was quite frank about his past when interviewing for the positions and in no sense tried to hide his criminal record. In both jobs, Petitioner has handled funds of the company, and there has not been any indication of trouble or shortage.
Petitioner wants the license to sell real estate because it would open the door for him to a much greater earning potential. In his current job, for example, he has earned $600 in the month he has been there. Had he had a salesman's license and been on a commission basis, his earnings would have been much higher. Additionally, receiving the license would give him a certain amount of status and an ego boost, especially after the way he started his adult life.
Both Ms. Reed and Mr. Steen, his former probation officials, feel Petitioner has been fully rehabilitated entirely through his own motivation and effort. His early offenses were when he was a young man and influenced by the use of drugs which he no longer uses. Since his release from probation he has had only two traffic citations, one for failing to stop at a stop sign, and one for failing to yield the right-of-way, resulting in an accident.
When Petitioner's application for a license was first denied, he requested an informal hearing before the Commission, at which time he told the members he knew when he filled out the application form if he answered accurately, there was no way he would get his license. He now admits that answering falsely was the wrong thing to do. He understood the question, and his answer was what he intended to say and not an error. He answered falsely because the most recent arrest was seven years old, and his current life-style is completely different than his life-style then. His prior arrests and convictions in a moral sense, he feels, have no bearing on his present life, and he felt he had paid his debts to society. He now realizes that his answer to Question 6 should have been accurate and to falsify was a mistake.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Florida Real Estate Commission denied Petitioner's application for licensure as a real estate salesman because it failed to find he met the qualifications for licensure in accordance with Section 475.17(1), Florida Statutes (1981). That statutory provision states:
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 character and shall have a good
reputation for fair dealing. An applicant for an active broker's license or
a salesman's license shall be competent and qualified to make real estate
transactions and conduct negotiations there for with safety to investors and to those with whom he may undertake a relationship
of trust and confidence. If the applicant has been denied registration 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 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 applicant then been registered, 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 not likely be endangered by the granting of registration.
The significant words in this paragraph are found in the opening lines which refer to such qualities as honesty, truthfulness, trustworthiness, etc., and later in the paragraph is the standard that "if the applicant has been guilty of conduct or practices in this state . . . which would have been grounds for revoking or suspending his license under this chapter, the applicant shall be deemed not to be qualified . . . unless enough time has passed since the conviction to raise the likelihood that the interests of the public and investors will not be damaged.
In this case, there is no dispute as to the major facts. Petitioner was arrested several times during his young adulthood for offenses dealing with the invasion of property rights and was convicted at least twice of felonies which resulted in his imprisonment. There is no doubt he was released both from imprisonment and from the conditions of his probation/parole early because of evidence of rehabilitation. There is also no doubt that when he was faced with a pressure situation where it would be in his benefit to lie to procure an end he wanted, he did so without regard to integrity, honesty, trustworthiness, and truthfulness, substantially diminishing the other evidence of rehabilitation.
An individual's right to pursue his chosen vocation is not absolute, but is qualified by something equally significant, the public interest. In an area such as the practice of the real estate profession, where the usually unsophisticated and often technically incompetent person must perforce rely on the integrity of the professional, it is an absolute that the integrity of that individual must be beyond question. For that reason, the highest standards are set, and rightly so, for those aspiring to the practice of that profession. It makes no sense to permit one into the profession who in his application for licensure is not honest and knowingly sets out to hoodwink the guardians of the standards.
Petitioner falls squarely in that category of individual against whom these defenses are set up, not because of his prior convictions, but because of his failure to be honest in his application. If he will conceal here, is not the potential great that he might do so again in the practice of real estate, to the detriment of the unsuspecting public? That risk is too great to assume.
Also to be considered is the fact that the time between his last conviction and the present is not so great as to raise the likelihood that the interests of the public and investors will not be damaged. The Petitioner's work record and demonstrated ability to refrain from taking that which is not his is impressive, but unfortunately defeated by the recent evidence of a flaw in his character by lying on his application. It is therefore clear, based on the above analysis, that Petitioner was legitimately denied licensure in accordance with the criteria set out in the statute.
The Respondent has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
