STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JUSTIN S. SPIERS, )

)

Petitioner, )

)

vs. ) CASE NO. 83-955

)

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 June 16, 1983 in Fort Lauderdale, Florida. A transcript of the proceedings was received by the Division of Administrative Hearings on August 12, 1983.

APPEARANCES

For Petitioner: Justin S. Spiers, pro se

10880 Olive Avenue

Pembroke Pines, Florida 33026

For Respondent: Ralph Armstead, Esquire

Assistant Attorney General Department of Legal Affairs

Room 212, 400 West Robinson Street

Orlando, Florida 32801 ISSUE

The issue posed for decision herein is whether or not the petitioner is qualified or otherwise eligible for licensure in accordance with Chapter 475.17, Florida Statutes.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, the post-hearing memorandum and the entire record compiled herein, the following relevant facts are found:

1. By letter dated February 18, 1983, the Florida Real Estate Commission (sometimes herein referred to as the respondent or the Commission) advised the petitioner that his application for licensure as a real estate salesman was denied based upon petitioner's answer to question 6 of the licensing application and his criminal record.

2. On September 1, 1982, petitioner held a Mutuel Clerk's Occupational License (NOP-00455) issued by the Division of Pari-Mutuel Wagering, Department of Business Regulation, State of Florida. While acting in the capacity of a mutuel clerk at Calder Race Course in Dade County, Florida, Petitioner, on September 1, 1982, cashed a winning one dollar ($1.00) trifecta ticket for the eighth race on August 28, 1982, valued at six hundred thirty-six dollars and eighty cents ($636.80) for Metro-Dade Organized Crime Bureau Detective, Jonas Sears, for a cash fee payable to Petitioner. Petitioner did not require Detective Sears to complete the necessary internal revenue service form W-2G which is required of any patron winning six hundred dollars ($600.00) or more.

   
   

3. On October 22, 1982, petitioner entered into a consent order with the Division of Pari-Mutuel Wagering wherein petitioner agreed to certain findings. Based on those findings, petitioner agreed to a suspension of his pari-mutuel license for a period of seventy-five (75) days. A clerk who engages in such conduct violates Section 550.16(7), Florida Statutes and Rule Section 7E- 6.07(3)(6), Florida Administrative Code.

   
   

4. Petitioner also admitted to deducting sixty dollars and eighty cents ($60.80) as a cash fee payable to him for not requiring Detective Sears to complete the necessary Internal Revenue Service form W-2G.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

7. The authority of the respondent is derived from Chapter 475, Florida Statutes.

   
   

8. Section 475.17(1), Florida Statutes, authorizes the Florida Real Estate Commission to deny for licensure consideration an applicant whose license to conduct or practice a profession, business or vocation has been suspended by the State of Florida for conduct or practices which would have warranted a like result under Chapter 475, Laws of Florida. Further, Section 475.17(1), Florida Statutes calls for an applicant for licensure to be "honest, truthful, trustworthy and of good character and shall have a good reputation for fair dealing . . ."

   
   

9. Rule Chapter 7E-6.07(3)(c) , Florida Administrative Code, imposes a stringent duty upon licensed pari-mutuel sellers and cashiers which shall not be compromised and forbids pari-mutuel sellers and cashiers to, at any time, serve as an agent or employee of a patron. Petitioner, by agreeing that he violated Section 550.16(7), Florida Statutes and Rule 7E.6.07(3)(c), Florida Administrative Code, by arranging for a third party to sign an Internal Revenue Service W-2G form on a ticket presented by a patron and having received a commission for said service amounts to conduct which falls short of that required of an applicant for licensure pursuant to Section 475.17(1) , Florida Statutes.

   
   

10. Petitioner failed to present other evidence which would provide a basis to conclude that either by a lapse of time or by exhibiting other exemplary conduct, his character has been rehabilitated to the point whereby he

    is, at this time, qualified for licensure as a real estate salesman pursuant to the guidelines of Section 475.17(1), Florida Statutes.

    
    

11. Based on the foregoing Findings of Fact and Conclusions of Law, I hereby make the following

RECOMMENDATION

That the respondent enter a Final Order denying petitioner's application for licensure as a real estate salesman.

RECOMMENDED this 14th day of September, 1983 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 14th day of September, 1983.

ENDNOTE

1/ Pursuant to leave, the parties were allowed through August 22, 1983, to submit proposed memoranda supportive of their respective positions.

Respondent's counsel has submitted proposed findings of fact and conclusions of law which were considered by me in preparation of this Recommended Order. To the extent that the proposed findings of fact and conclusions of law are not incorporated in this Recommended Order, said proposed findings etc. were deemed either irrelevant, immaterial or not otherwise supported by record evidence.

COPIES FURNISHED:

Justin S. Spiers 10880 Olive Avenue

Pembroke Pines, Florida 33026

Ralph Armstead, Esquire Assistant Attorney General Dept. of Legal Affairs

Room 212, 400 W. Robinson St.

Orlando, Florida 32801

William Furlow

Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32801

Mr. Harold Huff, Exec. Dir. Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32801

Docket for Case No: 83-000955

Orders for Case No: 83-000955