Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on March 14, 1983, in Sarasota, Florida.
For Petitioner: Daniel E. Scott, Esquire
On August 23 1982, the Department of Professional Regulation, the Florida Real Estate Commission, received the application of the Petitioner for a real estate salesman's license. On October 22, 1982, the Department of Legal Affairs notified the Petitioner that his application had been denied on the grounds that he had given an incomplete answer to Question No. 6 of the application and also on the grounds that he had been convicted twice of driving under the influence and twice for disorderly intoxication. Following the denial of his application, the Respondent timely requested a formal hearing.
At the formal hearing, the Petitioner testified on his own behalf and also called Nellie Lynn and Janet Mae Richards as witnesses. The Respondent called no witnesses but had admitted, without objection, Exhibits 1 through 6. A Joint Exhibit 1 was also offered and admitted. Joint Exhibit 1 is the October 22, 1982, letter notifying the Petitioner of the denial of his application. The Petitioner offered and had admitted, without objection, one exhibit.
Both counsel for the Petitioner and counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are not adopted herein, they were considered by the Hearing Officer and determined to be irrelevant to the issues of this cause or not supported by the evidence.
On or about August 23, 1982, the Petitioner submitted his Application for Licensure as a Real Estate Salesman to the Florida Real Estate Commission.
Question 6 of the application and Mr. Grant's response reads as follows:
6. 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? Yes
If yes, state details including the outcome in full: D.U.I., but all requirements have been satisfied and suspension period long over.
On September 30, 1982, the Respondent, by letter, notified the Petitioner of two D.U.I. charges and two Disorderly-Conduct-Intoxication charges that had come to the Respondent's attention. The letter further asked for an explanation of these charges as well as an explanation of the Petitioner's "partial
answer" to Question No. 6 on the application. (See Petitioner's Exhibit 1).
The Petitioner responded in writing with a further explanation of the charges but did not specifically address the question raised regarding the "partial answer" to Question 6. The response also stated that the Petitioner had asked his attorney, James Dirmann, to be of any further additional assistance. (See Petitioner's Exhibit 1).
On October 22, 1982, the Florida Real Estate Commission notified Mr. Grant, by letter, of its denial of his application for licensure. That letter specifically noted two grounds for denial of the application and stated in relevant part:
The reason for the Commission's action is based on your answer to Question 6 of the licensing application and/or your
criminal record according to the appropriate law enforcement agency. Specifically,
your denial is based upon:
1978 Driving under the influence arrest/conviction
August 1979 disorderly intoxication conviction
Disorderly intoxication & resisting arrest without violence arrest/conviction
1981 Driving under the influence conviction
On July 11, 1978, Petitioner was convicted in Sarasota, Florida, of driving while under the influence of alcohol and was fined $222. (See Respondent's Exhibit 5).
In August, 1979, Petitioner was arrested for disorderly intoxication in Sarasota, Florida, and estreated his bond of $64.50 on August 27, 1979. The order (Respondent's Exhibit 2) does not reflect whether the petitioner was, in fact, convicted of an offense. (See Respondent's Exhibit 2).
On April 14, 1981, petitioner was convicted of disorderly intoxication in Sarasota, Florida, and was fined $85.00 (See Respondent's Exhibit 3.)
On September 22, 1981, Petitioner was convicted in Sarasota, Florida, of driving while under the influence of alcohol and was fined $350.00. (See Respondent's Exhibit 4).
The two disorderly intoxication convictions on August 27, 1979, and April 14, 1981, arose out of incidents that occurred when the Petitioner was attempting to check into First Step of Sarasota, an alcohol rehabilitation center located in Sarasota, Florida.
The four incidents referred to in Paragraphs 6 through 9 above are the only convictions or arrests the Petitioner has had.
When the Respondent answered Question No. 6 on his application, he had no documents or records of the four offenses described in Paragraphs 6 through 9 above and was not certain whether even the driving under the influence charges would be considered offenses. He did not recall the disorderly intoxication arrests, but did not deny that they had occurred in his October 8, 1982, response to the Commission's September 30, 1982, inquiry. (See Petitioner's Exhibit 1). The Petitioner did not intentionally attempt to conceal information or mislead the Commission in his response to Question 6. The incomplete answer was an oversight and due in part to confusion on the part of Petitioner.
During the time period 1978 through 1981, the Petitioner did, in fact, have a drinking problem. This problem developed as a result of a series of events beginning with a very hard fought and lengthy divorce proceeding initiated by Mr. Grant's ex-wife in June, 1975. Prior to 1975, Mr. Grant's mother had had a stroke and was totally disabled. In August, 1977, Mr. Grant's father died and it was necessary to close the family business which had been operated by Mr. Grant and his father and mother for many years. After his father's death, Mr. Grant became totally responsible for his invalid mother. During this same time period, following his divorce, his ex-wife had remarried and he continually experienced problems with visitation with his two children.
The Petitioner began drinking heavily in 1978. In March, 1982, Mr. Grant voluntarily checked into Bay Pines Center, an alcohol rehabilitation
center. He remained in Bay Pines for thirty (30) days. Since leaving Bay Pines, Mr. Grant has not been drunk or intoxicated and has consumed only a glass of wine on a couple of special occasions. Prior to going to Bay Pines Center, Mr. Grant had sought the help of a psychologist but could not afford to continue the sessions.
From August, 1966, to August, 1974, Mr. Grant worked as manager and as an officer of the Sarasota County Credit Bureau. From August, 1974, to sometime in the Fall of 1977, Mr. Grant operated his own employment agency. He was licensed by the State in order to operate this employment agency. Prior to his employment with the Credit Bureau, Mr. Grant served as a First Lieutenant in the Army.
Mr. Grant has a reputation in the community as an honest, hardworking businessman. He also has a reputation in the community as a very trustworthy person. In the operation of the Sarasota Credit Bureau for eight years, he was a very responsible, hardworking, and honest individual. There was no evidence of any dishonest dealing in connection with the Petitioner's previous businesses.
Mr. Grant has improved greatly over the last year since leaving Bay Pines. He is more motivated and more active and now spends a great deal of time with his children. He has a much better relationship with his ex-wife and cooperates with her in caring for and giving guidance to their two children.
From July 6, 1982, to August 10, 1982, Mr. Grant attended the Bert Rogers School of Real Estate. The course consisted of two night sessions each week from 6:00 to 10:00 p.m. He did not miss a single class and was not late for a single class. He successfully passed the exam for that course.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this action.
Florida Statute 475.25 authorizes the Florida Real Estate Commission to deny an application for licensure if it finds the applicant has committed any one of those acts listed in Section 475.25 which constitute a basis for suspension or revocation of an existing license.
Section 475.25(1)(f), Florida Statutes, provides that a broker may be licensed if he has:
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 activities of a licensed broker or salesman or involves moral turpitude or
fraudulent or dishonest dealing.
Section 475.17(1), Florida Statutes, provides in relevant part:
An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the State, honest, trustworthy, truthful and of good character and shall have a good reputation for fair dealing.
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 . . . 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 Respondent denied the Petitioner's application upon two grounds. The first ground was that he had been convicted of offenses against the laws of Florida which involved moral turpitude. The Supreme Court of Florida has defined the term "moral turpitude":
Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted) It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the
question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607,
146 So. 660, 661 (1933)
Not every crime involves moral turpitude and, therefore, can serve as a basis for suspension or revocation of a license denial of an application for a license under Florida Statute 475.25. See Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981). Driving while under the influence of alcohol and disorderly intoxication are not offenses involving moral turpitude.
Additionally, the Petitioner recognized the drinking problem which gave rise to the offenses and sought help. The Petitioner has rehabilitated himself, and based upon the totality of the circumstances in this case, the four alcohol related offenses should not serve as a basis for denial of the Petitioner's application for licensure. See Pearl v. Florida Real Estate Board, supra.
The second basis for denial of the application was Mr. Grant's incomplete answer to Question 6 on his application. By making a general reference to "D.U.I." the Petitioner disclosed at least two of the offenses which the Respondent relied upon in denying his application. The failure to mention the disorderly intoxication arrests and convictions occurred as a result
of oversight and confusion rather than an intentional effort to mislead the Commission. The two offenses which were not mentioned in his answer to Question
6 were not offenses which would serve as a proper basis for denial of the Petitioner's application.
Only the two disorderly intoxication charges were not revealed by the Petitioner's response to Question 6 on the application. Disorderly intoxication is a second degree misdemeanor. See Florida Statute 856.011 (1979). The estreature of bond of $64.50 and a fine of $85.00 do not reflect that the court considered them to be serious disorderly intoxication violations. The maximum penalty for such an offense was 60 days imprisonment and a $500.00 fine. See Florida Statutes 775.082 and 775.083 (1979). Had the two disorderly intoxication offenses been listed, they would not in light of the circumstances and facts of this case, been a proper ground for the denial of the application. The mere fact that the defendant gave an incomplete response to Question 6 cannot then serve as a basis for denial of the Petitioner's application. Kozerowitz v. Stack and the Florida Real Estate Commission, 219 So.2d 469 (Fla. 3d DCA 1968)
The intent underlying the enactment of Chapter 475 is to ensure the protection of the public from unscrupulous and dishonest real estate brokers. Its purpose is to guard against fraudulent real estate practices. Pearl v. Florida Real Estate Board, supra; State ex rel Davis v. Rose, 97 Fla. 710, 122 So.225 (1929); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). The preponderance of the evidence in this case establishes that the Petitioner is honest, trustworthy, truthful, and of good character and enjoys a good reputation for fair dealing. The evidence likewise establishes that the interest of the public and investors will not likely be endangered by the granting of Mr. Grant's registration.
