STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH R. KNAPP, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3310

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings- on August 9, 1985, in West Palm Beach, Florida.

Petitioner represented himself and Respondent was represented by counsel.

APPEARANCES

For Petitioner: Joseph R. Knapp, pro se

1147 Sachemhead Terrace

West Palm Beach, Florida 33414

For Respondent: Lawrence S. Gendzier, Esquire

400 West Robinson Street Orlando, Florida 32801

ISSUE

Whether Petitioner is qualified for licensure as a real estate salesman.

BACKGROUND

By letter dated August 27, 1985, Respondent, Florida Real Estate Commission ("Commission"), informed Joseph R. Knapp ("Petitioner") that his application for licensure as a real estate salesman was denied "based on [his] answer to Question 6 of the licensing application and/or [his] criminal record. "

The Commission indicated that he did not meet the requirements of Section 475.17(1), Florida Statutes, which requires applicants to be "honest, truthful, trustworthy, and of good character, and . . . have a good reputation for fair dealing."

Petitioner timely requested a Section 120.57(1) hearing to present evidence that he was qualified for licensure. On September 10, 1984, this case was referred to the Division of Administrative Hearings for assignment of a hearing officer.

Hearing, initially set for January 4, 1985, was continued and reset for March 5, 1985, then reset for April 26, 1985. Petitioner failed to appear at

hearing on April 26, 1985, resulting in entry of an order to show cause why a default should not be entered against him. After he explained that he had been misinformed (by message from his brother) that the April 26, 1985, hearing had been changed to May 6, 1985, hearing was reset for August 9, 1985.

At hearing Petitioner testified in his own behalf. Petitioner's Exhibit No. 1 and Respondent's Exhibit Nos. 1 through 6 were received in evidence. 1/

The transcript of hearing was filed on August 23, 1985. The Commission filed proposed findings of fact on September 12, 1985. On September 27, 1985, Petitioner filed proposed findings in the form of a narrative letter; attached were two letters, one from Gerald H. Grant (relating to Petitioner's successful passage of a prescribed real estate salesman's course), and the other from attorney James J. English (relating to Petitioner's character and sincerity).

On October 15, 1985, the Commission objected to Petitioner's September 27, 1984, submittal on grounds of form and timeliness. On November 5, 1985, Petitioner responded to the objections stating that he was unaware that a specific form for proposed findings was required and apologizing for the delay in filing the referenced letters. He explained that he thought he was allowed to file the letters subsequent to hearing and that he could not control the time the two individuals took to write the letters. He also filed five proposed findings of fact, separately numbered and in proper form. The Commission's objection is overruled and the two letters are received in evidence. (The letters introduce no new material, but simply corroborate evidence already in the record.) As to timeliness, the Commission has shown no prejudice from the late filing. When a party represents himself and is unfamiliar with the requirements of formal proceedings, strict procedural rules should be liberally applied so long as the opposing party is not unfairly disadvantaged. Rulings on the proposed findings submitted by both parties are contained in the Appendix.

Based on the evidence, the following facts are determined: FINDINGS OF FACT

1. Petitioner is now 26 years old. In March 1977, at age 18, he was arrested for sale and possession of less than five grams of marijuana. He was found guilty of the sale charge, but adjudication was withheld and he was placed on probation for one year. 2/ He was convicted of the possession charge and sentenced to confinement of 20 days. (TR-12, 46; R-3; R-6)

   
   

2. In 1979, two years later, Petitioner was arrested and convicted of a Moving Traffic Violation (Reckless Driving), Aggravated Assault on a Police Officer (Strong-arm Battery), and Driving Under the Influence of Liquor. He was sentenced to 60 days' confinement for the first two offenses, and one year of confinement for the third, with the sentences to run concurrently. He served his sentence. (R-6)

   
   

3. Petitioner explained the events giving rise to these charges. He was working as a cook in a restaurant at the time. After work, he and some friends went to different lounges and "celebrated heavily." (TR-49) He became "pretty intoxicated," then -- while driving his automobile -- had an accident. Nobody got hurt, but he left the scene. A police officer stopped and arrested him while not far from the scene. As told by Petitioner, the police officer "jerked [me] out of the car and started fighting with [me]. . . and I defended myself, and I got charged with it [Assault on a Police Officer]. . . . He was attacking me." 3/ (TR-5O)

4. Petitioner completed his application for licensure in a forthright and honest fashion. In answer to Question No. 6 (asking if he had ever been arrested or convicted of an offense), he referenced an addendum which was a copy of his record on file with local law enforcement authorities. He made no attempt to evade the question or conceal his past. (R-3)

   
   

5. The crimes of which Petitioner was convicted or found guilty did not involve theft, fraud or dishonesty. They occurred in 1977 and 1979; he has not been found guilty or convicted of an offense for the past six years.

   
   

6. Petitioner genuinely desires to become a real estate salesman. In June 1984, he enrolled in and successfully completed a prescribed "FREC I Salesman Course" at the Gold Coast School of Real Estate VII, Inc., in West Palm Beach, Florida. Before taking that course, he wrote a letter to the Commission asking about his eligibility for licensure in light of his past record. On January 20, 1984, Harold R. Huff, Director, responded:

   
   

   Individuals may enroll in real estate courses at any time and each individual application is considered on its own merits.

   
   

   Persons who have been convicted and served sentences may apply for a real estate license. The Commission considers the seriousness of the individual case, the circumstances of the individual case, and the period of rehabilita- tion, in making its decision as to granting of a real estate license. Again, each case is considered on its own merits.

   
   

   The Commission is known for its compassion for the rights of individuals. However, in its consideration, the utmost in mind is the pro- tection of the public and the pattern of be- havior of the individuals during recent years is important in its decision.

   
   

7. Petitioner has been gainfully employed for several years. Since June 1985, he has worked for Southern Credit Clearing, a bill collection agency, in West Palm Beach. From January to June 1984, he worked for International Medical Centers in Boynton Beach, where he conducted group seminars and enrolled persons in Health Maintenance Organizations. Prior to that time, he worked for various resorts in Palm Beach County including the Sand Dunes, the Commander, the Bellatrix, the Ocean Club, and Gulf Stream Manor, where he did public relations in connection with the sale of time-interval ownerships and became interested in real estate.

   
   

8. By choice, he changed jobs relatively frequently so that he could experience many different "fields of life." (TR-20) There was no evidence that he did other than satisfactory work for his employers, or that any employer even disciplined or dismissed him for misconduct.

   
   

9. He has attended different churches in the West Palm Beach area and has been a choir member. He describes himself as a born-again Christian and now regularly attends Chapel-by-the- Lake at the First Baptist Church in West Palm Beach.

10. Petitioner enjoys the creative arts. He enjoys writing poetry and songs, and plays several instruments, including bass guitar, piano, harmonica, various horns, and saxophone. He attended Palm Beach Junior College in 1978 and 1979, majoring in music. In 1983, he returned to take and complete a music course. He intends to return in the future and study more music, writing, foreign languages and, perhaps, psychology.

    
    

11. Petitioner genuinely believes that he has the requisite character, honesty, and integrity to be a real estate salesman. His explanation was compelling and delivered with quiet conviction:

    
    

    See, the thing with honesty, integrity and good character, I feel I've always had these things -- I've always had these qualities.

    Even though all these incidents have happened to me, I feel that I've always had [them] ... and that they're becoming more intensified now every day because -- well, I believe in karma, whatever you do is going to eventually catch up with you in life, and that's why I always try to be honest with people.

    
    

    And I don't think there's ever a time in my life that I've stolen anything from anybody. I've never robbed anybody. I've never bur- glarized anybody. I've never -- if I've ever fought anybody physically, it was a long time ago when I was a kid. Generally I always try to help people out.

    
    

    (TR-25)

    
    

12. Petitioner has shown that he is an honest, truthful, and trustworthy person; that he has the requisite good character and a good reputation for fair dealing. Six years have elapsed since, as a young man, he was convicted of a crime. During the ensuing years, he has engaged in gainful employment and has been a law-abiding citizen. He sets a high value on honesty and truthfulness. His two six-year old convictions did not involve fraud or dishonesty. Since his conviction of those crimes, which must be viewed as isolated events, he has demonstrated rehabilitation. Corroborating evidence of his truthfulness is the forthright way he answered Question No. 6 on the application (relating to his criminal record) -- by attaching a copy of his criminal "rap" sheet.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. An applicant for a real estate salesman's license in Florida has the burden of demonstrating that he or she meets the statutory qualifications for

    licensure. Here, the Commission (preliminarily) determined that Petitioner meets all statutory qualifications except for those contained in Section 475.17 and 475.25, Florida Statutes, which provide in relevant part:

    
    

    Section 475.17(1)(a) An applicant for licen- sure . . . shall be . . . honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. . . .

    * * *

    475.25(1)(f) [An applicant may be denied if he] has been convicted or found guilty regard- less of adjudication of a crime in any juris- diction, which directly . . . involves moral turpitude or fraudulent or dishonest

    dealing. . . .

    
    

15. In Bachynsky v. State, Department of Professional Regulation, 471 So.2d 1305 (Fla. 1st DCA 1985), the Board of Medical Examiners had denied an application for licensure as a physician on the theory that the applicant lacked good moral character because of his conviction, over nine years earlier, of a federal misdemeanor charge -- possession of stolen automobile parts of a value less than $100.00, which were known, in all probability, to have been stolen and transported in interstate commerce. The Court agreed with the hearing officer, who had found that the conviction did not establish lack of good moral character; that over nine years had elapsed since the conviction; that, over the years, the applicant had maintained a successful medical practice in another state and was held in high regard by his peers; and that it was not shown that the applicant's ability to practice medicine was adversely affected by reason of the conviction. The court concluded that the Board, faced with ample evidence of rehabilitation, could not reject the hearing officer's finding that the applicant possessed good moral character, "in that the conviction was isolated and not rationally related to the practice of medicine." Id. at 1311. An isolated unlawful act or acts of indiscretion, wherever committed, do not necessarily establish bad moral character. Zemour, Inc. v. State of Florida, Division of Beverages, 347 So.2d 1102 (Fla. 1st DCA 1977).

    
    

16. In Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), the court held that conviction for possession of a controlled substance does not establish moral turpitude within the provisions of Section 475.25(1)(e), Florida Statutes (1983).

    
    

17. Finally, according to its own Executive Director, the Commission is known for its "compassion for the rights of individuals," and, in passing on applications of persons with a criminal record, it considers the seriousness and circumstances of the individual case and the period of rehabilitation. The applicant's pattern of behavior during recent years is an important referent.

    (R-1)

    
    

18. Measured by these standards, Petitioner has sustained his burden of proving his entitlement to licensure. He has established that he is "honest, truthful, of good character and has a good reputation for fair dealing" within the meaning of Section 475.17(1), Florida Statutes (1983). Petitioner's conduct since his last conviction six years ago demonstrates his rehabilitation and that his two convictions were isolated incidents belonging to his youth. Given the circumstances of this case, the genuine rehabilitation that has occurred, and

the consideration the Commission accords to the rights of individuals (as described by its Executive Director), Petitioner's application for licensure should be granted. Individuals can grow, mature, and learn from their mistakes; Petitioner surely has.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED:

That Petitioner's application be granted based on his having satisfied all statutory criteria for licensure.

DONE and ORDERED this 3rd day of December, 1985, in Tallahassee Florida.

R. L. CALEEN Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1985.

ENDNOTES

1/ Petitioner's exhibits will be referred to as "P- "; Respondent's as "R- "; and pages in the transcript will be referred to as "TR- ".

2/ Later that year, his probation was extended for five years when he was charged with (but never found guilty or convicted of) Driving under the Influence of Liquor. He was arrested while coming home from his employer's Christmas party, where alcoholic beverages were served.

3/ Although Petitioner's description of the incident was unrefuted, he was admittedly intoxicated at the time the incident occurred. His explanation, alone, therefore is insufficient to establish that this was, in fact, what happened. His testimony does, however, demonstrate that this is what he now genuinely believes occurred.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3310

I.

1. Rulings on Petitioner's Proposed Findings of Fact.

   
   

   1-5. Approved.

   II.

2. Rulings on Respondent's Proposed Findings of Fact.

1-4. Approved.

1. Approved.

2. Approved.

7-9. Rejected. Arrest without conviction is irrelevant.

10. Approved.

11-13. Rejected, as arrest alone is irrelevant. 14-15. Approved.

1. Rejected as unsubstantiated by official criminal records.

2. Rejected. A mere arrest is irrelevant.

3. Rejected. A mere arrest is irrelevant.

4. Approved, but incomplete.

5. Rejected as irrelevant.

COPIES FURNISHED:

Lawrence S. Gendzier, Esquire

400 W. Robinson Street, Suite 212 Orlando, Florida 32801

Joseph R. Knapp

1147 Sachemhead Terrace

West Palm Beach, Florida 33414

Docket for Case No: 84-003310

Orders for Case No: 84-003310