v. ) CASE NO. 84-2544
Respondent. )
For Respondent: Lawrence S. Gendzier, Esquire
A final hearing was held in this case in Sarasota on November 15, 1984.
The issue is whether respondent, Florida Real Estate Commission, should grant the application of petitioner, Edward Thomas Harding (Harding), for licensure as a real estate salesman. Specifically, the issue is whether Harding is "honest, truthful, trustworthy, and of good character and [has] a good reputation for fair dealing," as required by Section 475.17(1)(a), Florida Statutes (1983), for licensure. 1/
Petitioner, Edward Thomas Harding (Harding), is 63 years old. He is from the Chicago area. By education and training, Harding is a mechanical engineer. In the Chicago area, he was involved in the building of homes and development of subdivisions.
Harding has the illness known as alcoholism. During the early 1970's, Harding succumbed to his alcoholism.
On May 28, 1972, Harding was arrested in Woodstock, Illinois and charged with driving while intoxicated. Harding was placed on three-years probation.
On June 4, 1972, Harding was arrested in Woodstock, Illinois and charged with driving while intoxicated, violating a federal firearms regulation and unlawfully using a weapon. The firearms and weapon charges were nol- prossed.
In the early 1970's, Harding joined Alcoholics Anonymous and entered a Veteran's Administration hospital rehabilitation program. As a result, Harding became a recovering alcoholic and by approximately 1975-1976 stopped drinking
altogether. As a result of the help he received from fellow members of Alcoholics Anonymous, Harding feels a personal responsibility to help fellow alcoholics towards recovery when he can.
On November 10, 1976, Harding was arrested in Bradenton, Florida and charged with threat to a public servant and disorderly conduct. The charges were dismissed.
In approximately December 1981, Harding moved to Sarasota, Florida. In approximately September 1982, Harding entered into an informal business partnership with Sara Herman, a friend of Harding's mother and family in Chicago who also had moved to Sarasota. Harding and Herman were to open and operate Lindal Cedar Home dealerships in Southwest Florida. In approximately September 1982, Harding bought a franchise for the area of Sarasota, Bradenton, Manatee County and DeSoto County, and Herman bought a franchise for the rest of Southwest Florida.
Under the franchise agreements they entered into, Harding and Herman both were required to construct a model home for use in selling the franchisor's cedar homes. Harding began construction of his model almost immediately; Herman decided to wait before investing any more of her savings in the business.
Herman was to serve as the bookkeeper for their businesses.
Rather than form a corporation at the outset, Harding began construction in his own name. Harding applied for a construction loan but meanwhile paid for the cost of construction using his personal checking accounts. Harding hired recovering alcoholics for construction and ether odd jobs he felt needed to be done in connection with the business.
At first, Harding thought his construction lean commitment was to be arranged within several weeks. The proceeds of the loan were to have been approximately $75,000, which Harding knew would more than cover his personal out-of-pocket expenses of construction. However, after the commitment was delayed beyond the time frame Harding expected, the lending institution told Harding that it had approved the lean but that the loan also had to be approved by the Veterans Administration. As a result of the Veterans Administrations requirements, the delay became two to three months.
While Harding was waiting for his construction loan commitment, he continued to spend his own money. For a while, bookkeeping and accounting problems disguised the true low balance in Harding's checking accounts. When Harding began to be concerned about his finances, he still refused to lay off the recovering alcoholics he had employed. By December 1982, Harding had become aware that his personal funds had been depleted and that he may have written checks that he could not cover. Harding did not write any more personal checks after this realization. Instead, Harding returned to Chicago to attempt to secure a loan from the Northern Trust Company, where he had done business before.
Meanwhile, on or about November 5, 1982, Harding's landlord filed charges against him for grand theft of a wheelbarrow and perhaps some other personal property worth a total of $100 to $200 from the rental house where Harding was living. After Harding left for Chicago, his landlord had him evicted and had Harding's records, clothing and personal effects thrown cut onto the street.
When Harding returned to Sarasota in December 1982, he discovered that he had been evicted and that his records, clothing and personal effects had been lest or stolen.
Meanwhile, by December 1982, some of Harding's checks began to be returned dishonored because of insufficient funds. Harding was arrested, charged with grand theft in Case No. 82-2409-CFA-01 and with issuing worthless checks, and put in jail. As the checks were brought to the attention of the State Attorney's Office for prosecution, additional cases were filed against Harding in the Sarasota County Circuit Court:
Case 82-2770-CFA-01
82-2771-CFA-01 two counts 83-0015-CFA-01
83-0371-CFA-01
83-0187-CFA-01
83-0188-CFA-01
82-2769-CFA-01
83-0370-CFA-01
82-3582-2-MI three counts 82-3535-2-MI
In all, Harding issued 13 worthless checks totalling approximately $3,900.
Eventually, Harding was released from jail and in approximately April 1983 began working for a business called Air Comfort. Harding still had no money or place to live.
On or about May 13, 1983, Harding pled no contest to all the charges and was sentenced to three years probation with credit for time served. A condition of probation was that Harding make full restitution on the worthless checks by May 20, 1983.
By May 20, 1983, Herman made restitution on the worthless checks for Harding. Harding repaid Herman in small installments according to his ability and, by the time of the final hearing, had repaid her in full.
In December 1983, Harding decided to try to become a real estate salesman and enrolled in the Bert Rogers course to prepare for the Florida real estate salesman's examination.
On or about February 13, 1984, Harding applied for licensure with the Florida Real Estate Commission. The application asked Harding:
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? Harding answered: "Yes." The application then instructed:
If you answered 'Yes', please state the details including dates and outcome in full.
Harding answered:
In early 1983 I was arrested in Sarasota County for some `worthless checks' in connec-
tion with a business I was operating. I made full restitution and was placed on probation.
In the early 1970's I was arrested several times for driving while intoxicated and some other charges in McHenry, Du Page and Cook Counties of Illinois while I was an active alcoholic. 1 joined AA while undergoing alcoholic rehabilitation at the VA hospital in Downy, Illinois and have not had a drink for the past 8 years.
Despite the legal problems which arose from his personal and financial difficulties, Harding is basically honest, truthful, trustworthy and of good character. Herman also believes he is a good businessman. It is not likely that Harding, if licensed as a real estate salesman, would endanger the interest of the public and investors on account of the quality of his moral character.
CONCLUSIONS OF LAW
Section 475.17(1)(a), Florida Statutes (1983), provides in pertinent part:
(1)(a) An applicant for licensure who is a natural person shall be. . . honest, truth- ful, trustworthy, and of good character and shall have a good reputation for fair deal- ing. . . . [I]f the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds
for revoking or suspending his license under this chapter had the applicant then been registered, the applicant shall be deemed net to be qualified unless, because of lapse of time and subsequent good conduct and reputa- tion, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will net likely
be endangered by the granting of registration.
Section 475.25(1)(f), Florida Statutes (1983), provides in pertinent part chat the Commission may deny an application if it finds that the applicant:
Has been convicted or found guilty, regard- less 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. Any plea of nolo conten- dere shall be considered a conviction for purposes of this paragraph. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.
Section 475.25(1) also authorizes the Commission to suspend or revoke a license if the Commission finds that a licensee had done any of the acts set forth in its subparagraphs.
Grand theft of the second degree (a third degree felony) is defined by Section 812.014(1), Florida Statutes (1983):
A person is guilty. . . if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another [valued at $100 or more but less than $20,000] with intent to, either temporarily or permanently:
Deprive the other person of a right to the property or a benefit therefrom.
Appropriate the property to his own use
or to the use of any person not entitled thereto.
As defined, grand theft of the second degree is not necessarily a crime "which directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealings"; nor do the facts of Harding's offense of grand theft meet any of the criteria of Section 475.25(1)(f), Florida Statutes (1983).
Nor do the 1972 alcohol-related offenses meet the criteria of Section 475.25(1)(f), Florida Statutes (1983).
A worthless check is made a crime by Section 832.05, Florida Statutes (1983):
. . .
It shall be unlawful for any person, firm or corporation to draw, make, utter, issue or deliver to another any check, draft, or other written order on any bank or deposi- tory for the payment of money or its equiva- lent, knowing at the time of the drawing, making, uttering, issuing or delivering such check or draft that the maker or drawer thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same on presentation; provided, that this section shall net apply to any check where the payee or holder knows or has been expressly notified prior to the drawing or uttering of same or has reason to believe that the drawer did net have on deposit or to his credit with the drawee sufficient funds to insure payment as afore- said, nor shall this section apply to any postdated check.
(4). . .
(a) It shall be unlawful for any person, firm or corporation to obtain any services, goods, wares or other things of value by means of a check, draft or other written order upon any bank, person, firm or corpora- tion, knowing at the time of the making,
drawing, uttering, issuing or delivering of said check or draft that the maker thereof has not sufficient funds on deposit in or credit with such bank or depository with which to pay the same upon presentation, provided however that no crime may be charged in respect to the giving of any such check or draft or other written order where the payee knows or has been expressly notified or has reason to believe that the drawer did net have on deposit or to his credit with the
drawee sufficient funds to insure payment thereof.
As defined, these worthless check offenses are not crimes "which directly [relate] to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent. dealing"; nor do the facts of Harding's worthless check offenses meet those criteria of Section 475.25(1)(f), Florida Statutes (1983). But the offenses, as defined, do involve "dishonest dealings" for purposes of Section 475.25(1)(f). Harding's no contest pleas constitute admissions that he knowingly misrepresented to the payees that he had sufficient funds to cover the checks.
Since Harding is guilty of conduct that would have been grounds for suspension or revocation under Section 475.25(1)(f) had he been a licensee, under Section 475.17(1)(a), the issue becomes:
Whether "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient. . . the interest of the public and investors will not likely be endangered" if Harding's application is granted; and
Whether Harding is "honest, truthful, trustworthy, and of good character and [has] a good reputation for fair dealing".
The burden of proof is on Harding. J. W. C. Company, Inc. v. Department of Transportation, 396 So.2nd 778 (Fla. 1st DCA 1981). A real estate salesman places himself in a position of trust and in a position to be tempted by funds and property placed in trust in his hands by his clients. It is therefore important to hold the individual to the legal burden of proof.
In this case, Harding's evidence could have been more convincing, but it still was sufficient to explain that in fact he was not involved in dishonest dealings despite his no contest pleas to the worthless check charges. He thought he had or would soon have funds to cover the checks. He wrote no more checks after he realized the extent of his financial difficulties.
Given Harding's satisfactory explanation of the more serious offenses to which he pled no contest (the worthless check charges) and the nature of the other offenses, Harding's proof in this case was sufficient to prove: (1) that the interest of the public and investors will not likely be endangered" if Harding's application is granted; and (2) that Harding is sufficiently "honest, truthful, trustworthy, and of good character" and has a good enough "reputation for fair dealing" for Licensure under Section 475.17(1)(a), Florida Statutes (1983). If Harding breaches the public trust embodied in the license he will receive, the Commission can and should appropriately discipline him
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Real Estate Commission enter a final order granting Edward Thomas Harding's application for licensure as a real estate salesman.
RECOMMENDED this 24th day of January, 1985 in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985.
1/ This was the only issue raised by respondent before, during or after the final hearing as to Harding's qualifications for licensure.
2/ Respondent submitted proposed findings of fact. The proposed findings of fact were reviewed, and the following Findings Of Fact attempt to rule, either directly or indirectly, on each proposed finding of fact. Proposed findings of fact which were approved and adopted are reflected in the following Findings Of Fact. Where proposed findings of fact are not reflected and no direct ruling rejecting them is apparent, the proposed findings of fact have been rejected as being subordinate, cumulative, immaterial or unnecessary.
Lawrence S. Gendzier, Esquire Assistant Attorney General Department of Legal Affairs
Harold Huff, Executive Director Department of Professional Regulation Florida Real Estate Commission
