STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FREDERICK J. LONSDALE, III, )

)

Petitioner, )

)

vs. ) Case No. 85-4116

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF REAL ) ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 24, 1986 in Orlando, Florida.

APPEARANCES

For Petitioner: Frederick J. Lonsdale, III, pro se

Post Office Box 3222

Altamonte Springs, Florida 32714

For Respondent: Randy Schwartz, Esquire

Suite 212, 400 West Robinson Street

Orlando, Florida 32801 BACKGROUND

This matter arose when respondent, Department of Professional Regulation, Division of Real Estate, issued proposed agency action in the form of a letter on November 29, 1985, advising petitioner, Frederick J. Lonsdale, III, that his application for licensure as a real estate salesman had been denied because of petitioner's criminal record. According to the letter, petitioner did not meet the requirement in Subsection 475.17(1)(a), Florida Statutes (1985), which called for an applicant to be "honest, truthful, trustworthy, and of good character, and . have a good reputation for fair dealing." It is this proposed action that petitioner contests. The matter was forwarded by respondent to the Division of Administrative Hearings on December 5, 1985, with a request for a formal

hearing. By notice of hearing dated January 29, 1986, a final hearing was scheduled for March 24, 1986 in Orlando, Florida.

At final hearing, petitioner testified on his own behalf, presented the testimony of his wife, Penny Lonsdale, and offered petitioner's exhibit 1 which was received in evidence.

Respondent offered respondent's exhibits 1-3. All were received in evidence.

The transcript of hearing was filed on April 3, 1986. Both parties waived their right to file proposed findings of fact and conclusions of law.

The issue herein is whether petitioner meets the qualifications for licensure as a real estate salesman by examination.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Frederick J. Lonsdale, III, made application on July 30, 1985 for licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division).

   
   

2. Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld." Petitioner answered in the affirmative and gave the following response:

   
   

   1976 - Driving while license is suspended, drove car while under point suspension

   
   

   1976 - Petty larceny--I syphoned a tank full of gas out of a truck--guilty/10 days jail.

   
   

   1977 - Uttering of a worthless check had written a bad check for $81.00 and failed to make it good. Pled guilty and was sentenced [sic] to 6 most probation & restitution.

   
   

   1981 - Armed robbery--I robbed an Orlando Bank of $6,710 at gunpoint.

   
   

3. After reviewing the application the Division issued proposed agency action on November 29, 1985 denying the application on the ground the response to question six indicated

   petitioner did not comply with the requirement that he be "honest, truthful, trustworthy, and of good character," and that he "have a good reputation for fair dealing." This action prompted petitioner's request for a hearing.

   
   

4. Petitioner was candid and forthright in acknowledging his prior problems with the law. Most, if not all, of his arrests and convictions were attributable to a combination of severe financial problems, a divorce and a child custody battle with his former wife. The armed robbery occurred when Lonsdale was in dire financial straits, and only after he had consumed eight alcoholic drinks to build up his courage to commit the crime.

   
   

5. Petitioner was incarcerated for the robbery conviction from November, 1981 to November, 1984 and is now on probation. If he completes restitution to the bank by November 1986, he is eligible to end his probation that month. However, if he continues to make restitution at the present rate of $100 per month, he will not be released from parole until November, 1989. In terms of rehabilitation, Lonsdale has reestablished his credit, is in the process of making restitution to the bank, has remarried, and has a steady job which requires contact with the public. Since release from prison, he has handled substantial

   amounts of cash on occasion. He apparently has a knack for sales work and wishes to become a real estate salesman to enhance his earnings potential. He has been promised a job with an Orlando area real estate firm if he obtains his license. His wife also holds an inactive real estate license, and they intend to work together.

   
   

6. Other than one speeding ticket, there is no evidence of any misconduct since petitioner's last episode with the law.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1985).

   
   

8. Subsection 475.17(1)(a), Florida Statutes (1985), is controlling herein and provides in pertinent part as follows:

   
   

   (l)(a) An applicant for licensure . . . shall be . . . honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing . . . if 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 not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration.

   
   

   Under the foregoing statute, an applicant for licensure must be "honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing." Further, if the applicant has committed an act which would be grounds for disciplining his license if he had been registered, there must be a "lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient" in order to be eligible for licensure. In other words, the applicant must affirmatively demonstrate that he has rehabilitated himself since the illicit conduct occurred. Aquino v. Department of Professional Regulation, Board of Real Estate, 430 So. 2d 598 (Fla. 4th DCA 1983).

   
   

9. The record herein demonstrates that Lonsdale has made creditable efforts, under adverse circumstances, to rehabilitate himself after a series of bad luck and scrapes with the law. He was honest and candid in his testimony, and freely acknowledged his blemished past. However, except for his own testimony and that of his wife, there was no independent evidence from other individuals, such as an employer, realtor, or other person having familiarity with his reputation and habits, to establish his character and reputation for fair dealing in the community.l Without this he falls short of proving he possesses the necessary traits and rehabilitation that are required for licensure. Accordingly, the application must be denied. Such denial is, of course, without prejudice to petitioner filing another application at a later date and demonstrating compliance with the statute.

RECOMMENDATION

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

RECOMMENDED that petitioner's application for licensure

as a real estate salesman by examination be denied without prejudice to petitioner refiling an application at a later date.

DONE and ORDERED this 11th day of April, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1986.

ENDNOTE

1/ At hearing, petitioner stated he did not bring witnesses to testify on his behalf because he had no counsel and because he could not afford the cost of witness fees for subpoenas. If he refiles a second application at a later time, he should make an effort to either secure witness testimony voluntarily (i.e., to have a witness attend the hearing without the need for a subpoena).

COPIES FURNISHED:

Mr. Harold E. Huff, Director Division of Real Estate

400 West Robinson St. Tallahassee, Florida 32301

Frederick J. Lonsdale, III

P. O. Box 3222

Altamonte Springs, Florida 32714

Randy Schwartz, Esquire

Suite 212, 400 West Robinson St.

Orlando, Florida 32801

Docket for Case No: 85-004116

Orders for Case No: 85-004116