STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL D. HILL, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3058

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for final hearing in Tampa, Florida, on January 16, 1985, before Donald D. Conn, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing by:

For Petitioner: Jack W. Crdoks, Esquire

Crooks, Vetter, Cuellar and Blau, P.A. 4202 West Waters Avenue

Tampa, Florida 33614

For Respondent: Ralph Armstead, Esquire

Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

At the hearing, each of the parties introduced one exhibit. Petitioner testified on his own behalf and called two other witnesses. Respondent called no witnesses. A transcript of the hearing was filed on February 1, 1985.

The parties were given an opportunity to submit proposed findings of fact pursuant to Section 120.57(1)(b)4, F.S. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.

FINDINGS OF FACT

1. Carl D. Hill, Petitioner, applied for licensure to the Florida Real Estate Commission, Respondent, on or about October 19, 1983, and subsequently received a letter of denial dated December 6, 1983. The denial was based upon Sections 475.17(1) and 475.25, F.S., and specifically cited Petitioner's prior arrest in 1980 and criminal record.

   
   

2. By Order of the Circuit Court dated June 12, 1984, the record of Petitioner's prior arrest and plea of guilty was expunged and sealed.

   
   

3. Petitioner had originally been placed on probation for five years, but that probation was terminated early for good behavior after three years, on or about April 16, 1984.

4. Petitioner has not been arrested for any offense since 1980, and has at all times been employed. His reputation in the community is very good. Petitioner is currently co-owner of Interstate Mobile Homes and handles sales, service and set-up of mobile homes. His partner is a licensed real estate broker who also operates Sun American Realty in the same building. There is no evidence in the record which would indicate that Petitioner has at any time engaged in activities which would require a real estate salesman's license. All such activities are handled by his partner and co-owner who is licensed as a real estate broker.

   
   

5. Petitioner held a real estate salesman's license from November 1981 until January 18, 1983. Petitioner's previous license was revoked pursuant to Section 475.25(1)(m), F.S., but he was not precluded from reapplying for reinstatement.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings has jurisdiction of this matter, and the parties hereto, pursuant to Section 120.57, F.S.

   
   

2. Section 475.17(1), F.S., states that applicants for licensure shall be "honest, truthful, trustworthy and of good character, and shall have a good reputation for fair dealing." This section also states that if an applicant's license has previously been revoked, the applicant shall be deemed unqualified unless the lapse of time, subsequent good conduct and reputation, or other sufficient reasons make it appear that the public interest will not likely be endangered by granting the application.

   
   

3. The only evidence presented demonstrates that Petitioner meets the requirements of Section 475.17(1), F.S., for honesty, trustworthiness, good character, and a reputation for fair dealing. He is a successful businessman with strong ties to the community. He completed probation early due to good behavior and has not been in any trouble since his arrest in 1980. This demonstrates a sufficient lapse of time with subsequent good behavior to conclude that Petitioner is qualified under Section 475.17(1).

   
   

4. Section 475.25(1)(m), F.S., authorizes Respondent to deny an application for licensure when an applicant has been guilty of fraud, misrepresentation or concealment in obtaining a prior license. It was on the basis of this provision that Petitioner's license was revoked in January 1983 due to his failure to note his arrest in 1980 and plea of guilty on his original application in 1981. That arrest and related records were expunged and sealed by Order of the Circuit Court in 1984. Section 943.058(6)(a), F.S., deals with the effect of expunction or sealing of criminal records and provides:

   
   

   When all criminal history records, including the records maintained by the Department of Law Enforcement and the courts, have been expunged, the subject of such records shall be restored, in the full and unreserved contemplation of the law, to the status occupied before the arrest, indictment, information, or judicial proceedings covered by the expunged record.

   The expungement places Petitioner in the same position as if he had never been charged with the crime. However, it was Petitioner's action of not revealing his arrest and guilty plea, not the criminal charges or conviction, that formed the basis of his previous license revocation and that now concerns Respondent. The effect of expungement is not analogous to the granting of a full pardon and petitioner may be held responsible for his actions in a subsequent administrative licensing proceeding. Walton v. Turlington, 444 So. 2d 1082 (Fla. 1st DCA 1984).

   
   

5. Nevertheless, the provisions of Section 475.25, F.S., are discretionary and Respondent must be guided by the general purposes of Chapter 475, F.S. In this regard Section 475.001, F.S., states:

475.001 Purpose.--The Legislature finds that a significant number of real property transactions are facilitated by real estate brokers and salesmen and that it is necessary to assure the minimal competence of real estate practitioners in order to protect the public from potential economic loss; therefore, the Legislature deems it necessary in the interest of the public welfare to regulate real estate brokers, salesmen, and schools in this state.

In light of the lapse of time since Petitioner's arrest in 1980 and license revocation in 1983, and all evidence in the record concerning Petitioner's actions since 1980, licensure of Petitioner will not be contrary to the public welfare or the protection of the public from potential economic loss.

Petitioner is a well respected member of the community, with good business skills, and has met his burden of establishing his qualifications for licensure.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner's application for licensure as a real estate salesperson be APPROVED.

DONE and ORDERED this 26th day of February, 1985, at Tallahassee, Florida.

DONALD D. CONN

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 26th day of February, 1985.

COPIES FURNISHED:

Jack W. Crooks, Esquire Crooks, Vetter, Cuellar

and Blau, P.A.

4202 West Waters Avenue Tampa, Florida 33614

Ralph Armstead, Esquire Assistant Attorney General Suite 212

400 West Robinson Street Orlando, Florida 32801

Harold R. Huff, Director

Dept. of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

Fred Roche, Secretary

Dept. of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 84-003058

Orders for Case No: 84-003058