STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH G. BRAY, )

)

Petitioner, )

)

v. ) CASE NO. 83-3005

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Bearings, in Daytona Beach, Florida, on January 5, 1984. The issue for consideration was whether Petitioner should be denied licensure as a real estate salesman in the State of Florida.

APPEARANCES

For Petitioner: Kenneth G. Bray, pro se

2617 South Atlantic Avenue

Daytona Beach Shores, Florida 32018

For Respondent: Ralph Armstead, Esquire

Assistant Attorney General Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

BACKGROUND INFORMATION

On May 31, 1983, Petitioner, Kenneth G. Bray, submitted an application for licensure as a real estate salesman to the Respondent, Florida Real Estate Commission. Thereafter, by letter dated August 18, 1983, Randy Schwartz, counsel for Respondent, advised Petitioner his request for licensure was denied because, in the opinion of the Commission, Petitioner did not "have the necessary qualifications for licensure". Petitioner requested a hearing on the basis of that denial.

At the hearing, Petitioner testified in his own behalf. Respondent called Petitioner as a witness and presented Respondent's Exhibits A through C.

FINDINGS OF FACT

1. Petitioner here, Kenneth G. Bray, on May 31, 1983, filed an application for licensure as a real estate salesman in Florida with the Florida Real Estate Commission on its application form, which was received by the Commission on June

   9, 1983. Received that same date was the addendum to the real estate salesman's application, signed by Petitioner, which, according to the form itself, is to be answered instead of Question 6 on the basic application form. Petitioner answered Question 6 on both forms.

   
   

2. Question 6 on the basic application form states:

   
   

   Have you ever been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation includ- ing 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.

   
   

3. In answer to that question, Petitioner replied:

   
   

   D.W.I. Daytona Beach (Fined) 1982 1968 N.Y. Drugs, poss. larceny & sale (turned over to military)

   
   

4. On the addendum filed the same date, the question asked is somewhat different, reading:

   
   

   Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?

   
   

   To this question, Petitioner answered with the same information as contained in the answer to Question 6 on the basic application form.

   
   

5. A printout of Petitioner's Florida arrest record by the Florida Department of Law Enforcement dated June 29, 1983, reflects that Petitioner was arrested by officers of the Daytona Beach Police Department on November 28, 1982, for:

   
   

   1. Driving under the influence of liquor

   2. Possession of under 20 grams of marijuana

   3. Resisting an arresting officer without violence.

      
      

      Petitioner indicates all three offenses were part of the same incident and arrest, that he was fined for the offense of driving under the influence of liquor, and that the remaining two charges were dropped. Respondent offered no evidence to rebut this contention, and it is, therefore, found as fact that Petitioner was not convicted of either the marijuana offense or of resisting arrest.

      
      

6. Petitioner admits these latter two allegations were not listed on either form at Question 6 because they were all a part of the same arrest and he was not convicted of either. Further, these two omitted offenses were less serious than those he did list, such as the 1960 drug offense when he was a 21- year-old military member and the DUI. At the time the applications were

   submitted, he was under some problem to get them in because of an impending test date, and he omitted those two offenses. Thereafter, he telephonically contacted a representative of Respondent Real Estate Commission in Orlando, a lady named Ruth (Clayton), to whom he explained his omissions. According to Petitioner, she told him to write a letter to the Commission outlining the offenses he omitted, and he contends he did so. He does not have a copy of his letter, however, nor was a copy offered by Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

   
   

8. Respondent's letter of August 18, advising Petitioner of the denial of his application for licensure, cites as authority for its action Sections 475.17 and 475.25, Florida Statutes, further particularizing Section 475.17(1), which states:

   
   

   1. An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. . . .

      
      

9. In the second paragraph of its letter, Respondent relates Petitioner's answer to Question 6 on the licensing application to his "criminal" record according to the "appropriate" law enforcement agency. At the hearing, counsel for Respondent argued the importance of Petitioner's failure to include the DUI offense and the resisting arrest charge on the application. Respondent overlooks the important factor that the addendum to the application form, which is to be filled out "instead of" that Question 6 on the original form, calls for listing of only those offenses of which the applicant has been "convicted," or its equivalent. While it was shown Petitioner was "arrested" for those two offenses, there was no evidence he was "convicted," and, therefore, Petitioner had no obligation to list them.

   
   

10. It is true that Petitioner also answered Question 6 on the original form, which he was not obliged to do. Had this been the operative question, his omissions may then have been relevant. In this case, however, where the superseding form calls only for conviction or its equivalent, Petitioner's failure to list those charges of which he was not convicted is irrelevant, especially in light of his uncontroverted explanation of the reason for omission. It cannot fairly be said, therefore, under this factual situation, that Petitioner's omission constitutes a failure of honesty, truthfulness, trustworthiness, or a poor character.

    
    

11. Turning to the issue of the two offenses to which Petitioner did admit, however, it might be said, arguendo, that conviction of DUI and drug possession, larceny, and sale do constitute such a failing were it not for the fact that DUI is not a felony nor necessarily a failure of good character and the other allegations were not shown to have been proven.

    
    

12. Petitioner offered no independent evidence of his good character, honesty, truthfulness, or trustworthiness. By the same token, Respondent relied solely on his omissions to establish his lack of these characteristics, though its letter of denial failed to stipulate with clarity just what was wrong with

    Petitioner's answers to Question 6. There was no evidence to show whether Petitioner was convicted of these alleged 1968 offenses. All that was shown was that he was turned over to the military and Respondent failed to explore that avenue further.

    
    

13. Under the circumstances here, petitioner has demonstrated his basic qualifications to be licensed, and the DUI conviction does not bear on the issue of his honesty, truthfulness, trustworthiness, or character.

    
    

14. Respondent has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based on the above, it is

RECOMMENDED that Petitioner, if otherwise qualified, be issued a license as a real estate salesman in Florida.

RECOMMENDED this 3rd day of February, 1984, in Tallahassee, Florida.

ARNOLD H. POLLOCK

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 3rd day of February, 1984.

COPIES FURNISHED:

Ralph Armstead, Esquire Assistant Attorney General Department of Legal Affairs

400 West Robinson Street Suite 212

Orlando, Florida 32801

Mr. Harold Huff, Director Division of Real Estate Department of Professional

Regulation

Post Office Box 1900 Orlando, Florida 32802

Mr. Fred Roche Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Kenneth G. Bray

2617 South Atlantic Avenue

Daytona Beach Shores, Florida 32018

Docket for Case No: 83-003005

Orders for Case No: 83-003005