STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL R. FARMAR, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1110

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard pursuant to notice on August 23, 1983, in Fort Myers, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case arose on the denial by the Respondent, Department of Professional Regulation, Florida Real Estate Commission, of the application by the Petitioner, Michael R. Farmar, for licensure as a real estate salesman. The Petitioner requested a formal hearing to present evidence that he is qualified for licensure, and this matter was referred to the Division of Administrative Hearings for the conduct of a formal proceeding pursuant to Section 120.57(1), Florida Statutes.

APPEARANCES

For Petitioner: Michael R. Farmar, pro se

6042 Perthshire Lane, Southwest Fort Myers, Florida 33908

For Respondent: Lawrence Gendzier, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

ISSUES

The issue in this matter is whether the Petitioner's application for licensure as a real estate salesman should be denied.

The Respondent submitted posthearing findings of fact, which were read and considered. Those findings not incorporated herein are found to be either subordinate, cumulative, immaterial, unnecessary, or not supported by the evidence.

FINDINGS OF FACT

1. On April 8, 1981, the Petitioner, Michael R. Farmar, applied for licensure with the Respondent, Department of Professional Regulation, Florida Real Estate Commission, as a real estate salesman.

2. To Question number six on his application, "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?" the Petitioner answered affirmatively and included an attachment indicating arrests in Tallahassee, Florida, and Rockford, Illinois, and an arrest for possession of marijuana.

   (See Petitioner's Exhibit 1.)

   
   

3. In June 1981, the Petitioner's application was denied based on his affirmative answer to Question number six and his criminal record.

   
   

4. On February 7, 1983, the Petitioner filed another application for licensure as a real estate salesman. On this second application, he answered question number six affirmatively and listed "possession of marijuna [sic] - served 1 year in state prison." (See Joint Exhibit 1.) The Petitioner attached a letter to this application which, together with his testimony, indicates that the Petitioner viewed this application as an update of the original application.

   
   

5. In March 1983, Petitioner's second application was denied based on his affirmative answer to Question number six and his criminal record. (See Respondent's Exhibit l.)

   
   

6. In 1965, the Petitioner was arrested in Rockford, Illinois, and charged with various misdemeanors. The Petitioner pled guilty to these unspecified charges and was sentenced to pay a fine of $400. Unable to pay the fine, the Petitioner spent 23 days in the county jail. (Tr. 19-22.)

   
   

7. On or about December 17, 1970, in Fayetteville, North Carolina, the Petitioner was arrested and charged with assault on a female (his wife). This charge was later dropped. (Tr. 29.)

   
   

8. On January 31, 1975, the Petitioner was arrested in Tallahassee, Florida, and charged with carrying a concealed weapon, obstructing or opposing a police officer, and two counts of assault. The Petitioner pled guilty to the felony of carrying a concealed weapon and to one count of simple assault and was placed on probation for three years. (Respondent's Exhibit 3, Tr. 22-26.)

   
   

9. On March 6, 1979, the Petitioner was arrested in Palm Beach County, Florida, for felony possession of marijuana in excess of 100 pounds with intent to deliver. The Petitioner pled nolo contendere to the charge, was adjudged guilty, and was sentenced to five years in Florida State prison. The Petitioner was paroled from prison on January 11, 1983, and remains on parole at this time. (Tr. 13, 26-28)

   
   

10. No evidence was presented that the Petitioner has ever pled guilty to or been convicted of obstructing a police officer or falsifying identification.

    
    

11. Timothy P. Foster, the Petitioner's parole officer, testified that the Petitioner has been no problem while on parole.

    
    

12. Petitioner's wife is a real estate broker and has started her own business. The Petitioner wants to work as a salesman in this business. He has helped his wife set up her office and repairs property at times; however, he has a 100 percent service-connected disability and is not regularly employed.

    CONCLUSIONS OF LAW

    
    

13. The Florida Peal Estate Commission is charged by the Legislature with regulation of real estate salespersons and brokers pursuant to Chapter 475, Florida Statutes. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

14. Section 475.17(), Florida Statutes, provides in pertinent part that an applicant shall be deemed not to be qualified for licensure if he has been guilty of conduct or practices which would have been grounds for revoking or suspending his license had he been registered, unless, because of lapse of time and subsequent good conduct and reputation or other reason deemed sufficient, it shall appear to the Florida Real Estate Commission that the interest of the public and investors will not likely be endangered by the granting of registration. Section 475.25(1)(f) Florida Statutes, provides that being found guilty of a crime involving moral turpitude is grounds for removal or suspension of a real estate license and, therefore, grounds for denying an application for licensure as a real estate salesperson.

    
    

15. The Petitioner's most recent arrest conviction was in 1979 for the felony possession in excess of 100 pounds of marijuana with intent to deliver. He was sentenced to five years in Florida State prison and released on parole in January of this year. In 1975, the Petitioner pled guilty to charges of carrying a concealed weapon and simple assault in Tallahassee, Florida, and was placed on probation for three years. The first of these crimes is a felony under state law, as is carrying a concealed weapon. Conviction of a felony is grounds for revocation of a real estate license and, therefore, grounds for denial of an application for a real estate license.

    
    

16. The Petitioner has demonstrated that he is attempting to amend his life; however, his past record must be considered and his history of misconduct overcome. The Petitioner is still on probation, having been released from prison in January 1983, and has not demonstrated his present qualifications for licensure. The Petitioner can overcome his criminal record, and the Commission must weigh his present conduct against his past record. When it appears to the Commission, based upon the passage of time and the Petitioner's continued good conduct, that the public interest is protected, the Petitioner should be licensed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the application by the Petitioner, Michael R. Farmar, for licensure as a real estate salesman be denied.

DONE and RECOMMENDED this 7th day of October, 1983, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN, 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 7th day of October, 1983.

COPIES FURNISHED:

Mr. Michael R. Farmar 6042 Perthshire Lane, SW

Fort Myers, Florida 33908

Randy Schwartz, Esquire Department of Legal Affairs

400 West Robinson Street Suite 212

Orlando, Florida 32801

Lawrence Gendzier, Esquire Department of Legal Affairs

400 West Robinson Street, Suite 212

Orlando, Florida 32801

Frederick Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Harold Huff, Executive Director Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 83-001110

Orders for Case No: 83-001110