STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEO P. BAUMGARTNER )

)

Petitioner, )

)

vs. ) CASE NO. 83-0802

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on May 1, 1984, in Miami, Florida.

Petitioner Leo P. Baumgartner was represented by Mildred Smith Brown, Esquire of Miami, Florida, and Ralph Armstead, Esquire of Orlando, Florida, represented Respondent, Department of Professional Regulation, Florida Real Estate Commission.

By letter dated February 18, 1983, Respondent advised Petitioner that it was denying his application for licensure as a real estate salesman, and Petitioner timely requested a Formal Hearing on that determination.

Accordingly, the issue herein is whether Petitioner's application for licensure should be approved.

The Petitioner testified on his own behalf, and Petitioner's Exhibits numbered one and two were admitted in evidence. Additionally, Respondent's Exhibit numbered one was admitted in evidence.

Only the Respondent submitted post hearing findings of fact in the form of a Proposed recommended Order. To the extent that any findings of fact have not been adopted in this Recommended Order, they have been rejected as being irrelevant to the issues under consideration herein, as being unsupported by the evidence, or as constituting unsupported argument of counsel or conclusions of law.

FINDINGS OF FACT

1. When Petitioner applied to take the Florida Real Estate Salesman's Licensure Examination in approximately 1971 or 1972, it was discovered that criminal charges were still pending against Petitioner as a result of a check which had "bounced" in 1962, or 1963. He therefore made restitution on that check, even though the charges had been pending for almost ten years, and Petitioner was allowed to take the licensure examination. He failed to achieve a passing score.

2. Petitioner did not immediately attempt to sit for the licensure examination a second time but rather simply continued operating his retail florist business. In 1976 he had a dispute with an intermittent employee who had just left Petitioner's employment and started working for one of Petitioner's competitors. When an insurance/salary reimbursement check made payable to petitioner's florist shop and that employee arrived, Petitioner endorsed the names of both payees and cashed the check. Charges arising from that $46.00 check were dismissed after Petitioner had been arrested and had made restitution.

   
   

3. For approximately three years before her death in 1973, Petitioner and his wife "cared for" his mother-in-law who was in a nursing home. During that time her only source of income was her Social Security checks, and Petitioner had a power of attorney to sign her name and cash her checks. After her death the checks continued to come although Petitioner called and wrote the Social Security Office. He started collecting them and storing them in a box. In 1975 his florist business encountered financial difficulties, and Petitioner signed his name and his deceased mother-in-law's name to the checks he had been collecting and cashed them. He was subsequently arrested by the F.B.I. and charged with 46 counts of uttering forged U.S. Treasury checks, one count for each check. On December 12, 1977, Petitioner plead guilty and was found guilty. He was committed to some type of work release program on one count. As to counts two through 46, sentence was withheld and he was placed on probation for a period of three years with the additional condition that restitution be made. Petitioner did make restitution.

   
   

4. Toward the end of 1982 Petitioner realized that his educational credits would soon expire and he again wished to apply to take the Real Estate Licensure Examination. Where questioned on his application whether he had ever been arrested or charged with any offenses, Petitioner responded in the affirmative and listed the 1963 bad check which was paid, the "1977" check which was paid, and a 1978 three year probation with restitution. Based upon that information, Respondent denied Petitioner's application to take the licensure examination.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

6. In denying Petitioner's application for licensure, Respondent relied upon Sections 475.17 and 475.25, Florida Statutes. Section 475.17(1), Florida Statutes requires that an applicant for licensure be honest, truthful, trustworthy, and of good character and further provides that the applicant shall have a good reputation for fair dealing. Section 475.25(1)(f), Florida Statutes authorizes Respondent to deny an application for licensure if the applicant has been "...convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing." No direct evidence was introduced to show that Petitioner is honest, truthful, trustworthy or of good character, not even the testimony of the Petitioner himself. Rather, all of the evidence concerned the kinds of situations in which Petitioner has cashed checks made payable to others. All of the arrests and convictions involved other people's monies. Although Petitioner did give an honest answer on the application requesting information as to any prior arrests or criminal charges, that act of honesty in and of itself is not sufficient to show that Petitioner is honest, truthful or trustworthy, especially in view of

the fact that Respondent already knew about one of the problematic checks the check Petitioner bounced in approximately 1962. Petitioner has simply not met his burden of proving that he is of good character as required by the licensing statute, and no evidence was introduced to show that Petitioner's conduct should be overlooked because of a lapse of time or because of some subsequent good conduct. Although Petitioner argues that he only plead guilty to one of the 46 counts contained in that federal indictment, the Judgment and Probation/Commitment Order admitted in evidence indicates that although sentencing was withheld on 45 of those 46 counts Petitioner did in fact plead guilty and was found guilty of all 46 counts charged. Even if Petitioner had plead guilty and had been convicted on only one count (an argument contrary to the evidence), Petitioner knew his mother-in-law had been dead for two years before he signed her name to her Social Security checks and knew that he had no lawful claim to that money. Because Petitioner needed the money at the moment he simply took it. No evidence was introduced to show any subsequent rehabilitation or good conduct which could lead to any inference that Petitioner might not do the same with checks received in real estate transactions.

RECOMMENDATION

Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application

for licensure.

DONE and RECOMMENDED this 27th day of August, 1984, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1984.

COPIES FURNISHED:

Mildred Smith Brown, Esquire 4173 Southwest LeJeune Road Miami, Florida 33146

Ralph Armstead, Esquire Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32001

Docket for Case No: 83-000802

Orders for Case No: 83-000802