STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD GERARD MOORE, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2951

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 4, 1984, R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, held a formal hearing in this case in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Donald Gerard Moore, pro se

203 Alpine Road

West Palm Beach, Florida 33405

For Respondent: Lawrence S. Gendzier

Assistant Attorney General

Room 212, 400 West Robinson Street

Orlando, Florida 32801

ISSUE

Whether petitioner's application for licensure as a real estate salesman should be denied because he allegedly lacks the requisite honesty, trustworthiness, truthfulness, good character, and good reputation for fair dealing.

BACKGROUND

By letter of August 18, 1983, respondent Department of Professional Regulation, Florida Real Estate Commission ("Commission") denied petitioner Donald Gerard Moore's ("petitioner") application for a real estate salesman's license, on grounds that he lacked the requisite honesty, truthfulness, trustworthiness, character, and good requisition for fair dealing required by Section 475.17(1), Florida Statutes (1983).

Petitioner disputed the Commission's denial and requested a formal hearing.

This case was then transferred to the Division of Administrative Hearings for assignment of a hearing officer.

Based on the evidence 1/ presented at hearing, the following facts are determined:

FINDINGS OF FACT I.

1. On June 10, 1983, petitioner filed an application for licensure as a real estate salesman with the Florida Real Estate Commission.

   
   

2. Question No. 6, on the application, reads:

   
   

   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?

   
   

   If yes, state details including the outcome in full.

   
   

   Question #6 was answered by Petitioner as follows:

   
   

   Feb. 11, 1979 arrested - (hit & run & possession of cocaine) [sic] Case #79521C. In hit & run charge - (felony was dropped) In the cocaine [sic] charge 3 yrs. probation (Aug. 1, 79, Aug. 1, 82). Also (July 11,

   80) went to court for loitering or prowling charge - Pleaded no contest and paid $25 court cost - Case No. 80-4630mm.

   
   

3. On August 17, 1983, the Commission tentatively denied his application because of his criminal record disclosed by this answer to Question No. 6. His answer was truthful and correct.

   
   

4. On February 11, 1979, he was arrested in Lake Worth, Florida, and charged with possession of cocaine and hit and run. The hit and run charge was dropped and, on August 1, 1979, he pled guilty to the charge of possession of cocaine. He was adjudged guilty and sentenced to three years of probation.

   
   

5. On April 22, 1980, while on Probation, petitioner, was arrested in Boynton Beach, Florida, charged with loitering or prowling, and later convicted.

   
   

   II.

   
   

6. Petitioner, 22, was 18 years old in 1979, when he was arrested, and convicted of possessing a small amount of cocaine. The seriousness of his loitering or prowling conviction, which occurred in the next year, is revealed by the minimal sentence he received--a $25 fine.

   
   

7. That was his last unlawful act, and it occurred almost four years ago. During the last two years, his life and character have changed dramatically. He

   avoids illicit drugs; he works 60 hours a week as a salesman in a West Palm Beach furniture store; and he is the sole support for his 2 year old daughter, Keisha.

   
   

8. Both he and his friends attribute his change in lifestyle and character to the love and responsibility he feels for Keisha, whose mother left him approximately a year ago.

   
   

9. Two character witnesses, admittedly his friends, know petitioner to be an honest, trustworthy, and straight-forward person. They have been impressed by his willingness to accept responsibility for his young daughter and raise her almost single-handedly; by his willingness to work hard as a salesman and improve his lot. Both witnesses are reputable real estate brokers or salesmen in Florida. One has been in the real estate business for 11 years, is president of the largest realtor office in Palm Beach County, does a real estate radio talk show, and teaches and publishes articles on investing in real estate. He has known petitioner for about three years and stated, without hesitation, that he would hire petitioner if he obtains a real estate license. The other witness, licensed since 1977, has known petitioner since boyhood and believes that respondent would make a good real estate salesman.

   
   

10. The opinions of these character witnesses are persuasive and supported by other convincing evidence. Until recently, when he began working at a West Palm Beach furniture store because of the opportunity for increased sales, he had worked at a Lake Worth furniture store for 3 and 1/2 years. He began as a delivery boy, was promoted to part-time sales, then full-time sales. He opened the store four to six days a week. For the last four years, he has been a stable, productive and, by all accounts, reliable employee. The Commission has not alleged or shown otherwise.

    
    

11. Petitioner's completion of his application, and his candor and demeanor at hearing, provide further evidence of his character and honesty. On his application he truthfully and fully disclosed his previous arrests and convictions. At hearing, he candidly admitted his past indiscretions or unlawful acts, and expressed a sincere desire for an opportunity to become a real estate salesman:

    
    

    Yes, I would very much appreciate an opportunity to take the test. Like I say, my four years is a very long time. I don't know if it is for most people. It's been a long time for me. My lifestyle, you could really call it boring. Like I say, I am working sixty hours a week and taking of the

    business with the baby just about the rest of the time, and ninety percent of my spare time is spent with her.

    
    

    I am trying to prove something to you today that I already know in my heart, and that is that I would not cheat anybody and I do have a general fair and loving outlook on life. That's all.

    (TR.-28)

    
    

12. Based on the above, it is concluded, as an ultimate finding, that petitioner is honest, truthful, and trustworthy, and has good character and reputation. His conduct, over four years, demonstrates that he possesses these qualities. Two licensed real estate professionals, aware of his past misdeeds, enthusiastically vouch for his good character and ask that he be given an opportunity to become a salesman. It appears likely that his licensing, should he pass the examination, will not endanger the interests of the public or real estate investors.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1983).

    
    

14. In licensing proceedings, such as this, it is incumbent upon the applicant to demonstrate that he meets all criteria for licensure. See, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

15. The only criterion at issue here, found in Section 475.17(1)(a), Florida Statutes (1983), requires an applicant for a real estate license to be, among other things, honest, truthful, of good character, and have a good reputation for fair dealing. This section also recognizes that an applicant-- who may fall short at one point in time--can be rehabilitated and become eligible because of lapse of time and good conduct. See, Aquino v. Dept. of Professional Regulation and Board of Real Estate, So.2d (Fla. 4th DCA 1983); 8 FLW 1263. An isolated unlawful act or act of indiscretion does not necessarily establish bad character, Wash & Dry Vending Co. v. State Dept. of Business Regulation, etc. So.2d (Fla. 3d DCA 1983); 8 FLW 1032; neither should it foreclose the possibility that a person may learn from mistakes and, through time and experience, become a more thoughtful and decent person.

    
    

16. Petitioner has sustained his burden and demonstrated that he has the qualities of character and reputation required by Section 475.17(1)(a); that he has been rehabilitated; and that, if licensed, he will not endanger the public interest or investors in real estate. He is, therefore, qualified to take the licensing examination required by Section 475.175.

    
    

17. This conclusion is necessarily somewhat subjective and petitioner, if licensed, has the power to prove it wrong. Nevertheless, the statute requires that a judgment on his honesty and character be made, however difficult or tentative. What a person does is the best measure of these qualities; since people may grow and learn from their mistakes, their conduct in recent years should be given added weight. Here, petitioner's conduct during the last four years provides compelling proof that he has the requisite character and honesty.

    
    

18. The Commission's proposed findings of fact have been considered in preparing this recommended order. To the extent the findings were not consistent with the weight of credible evidence, they have been either rejected, or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have been rejected.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That petitioner be found qualified, under Section 475.17, and that, upon passing the required examination, he be licensed as a Florida real estate salesman.

DONE and ENTERED this 16th day of February, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 16th day of February, 1984.

ENDNOTE

1/ The evidence consists of the testimony of Douglas Rill, Dan Taylor, and petitioner; respondent's Request for Admissions, with response; and Respondent's Exhibits "A" and "B."

COPIES FURNISHED:

Donald Gerard Moore

203 Alpine Road

West Palm Beach, Florida 33405

Lawrence S. Gendzier Assistant Attorney General Room 212, 400 West

Robinson Street Orlando, Florida 32801

Harold Huff, Director Division of Real Estate

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 83-002951

Orders for Case No: 83-002951