STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ISIDORE A. BUSTAMANTE, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0123

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before William R. Caved Hearing Officer with the Division of Administrative Hearings on March 26, 1986 in Miami, Florida. The issue for determination is whether Petitioner's application for licensure as a real estate salesman should be denied.

APPEARANCES

For Petitioner: Isidore A. Bustamante, Pro Se

19406 Northwest 54th Place North Miami, Florida 33055

For Respondent: Lawrence S. Gendzier

400 South Robinson Street, Suite 212 Orlando Florida 32801

By letter dated January 14, 1986, Respondent denied Petitioner's application for licensure as a real estate salesman and as grounds for such denial of licensure The Florida Real Estate Commission (Commission) relied on the Petitioner's adjudication of incompetency and criminal record as indicated by Petitioner's answer to question no. 6 on his licensing application and his criminal record according to the appropriate law enforcement agency.

Petitioner testified on his own behalf and Petitioner's Exhibits 1-3 were received into evidence. Respondent did not present any witnesses. Respondent's exhibits 1-9 were received into evidence.

Only the Respondent submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made as reflected in the Appendix to the Recommended Order.

FINDINGS OF FACT

1. On July 30, 1985, Petitioner applied for licensure as a real estate salesman with the Commission.

   
   

2. Question 6 and Petitioner's answers are as follows:

   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:

   
   

   Yes

   
   

   This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses...without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.056 Florida Statutes, you are responsible for verifying the expungement or sealing prior to answering "NO."

   
   

   Yes

   
   

   If you answered "YES" please state the details including dates and outcome in full. (Use separate sheet if necessary)

   
   

   Unsure of exact dates, which were all as a result of a severe nervous breakdown due to military service. The last was in June 1983 because I was in possession of a non- prescribed drug.

   
   

3. Petitioner's application for a real estate salesman's license was denied by the Commissions based on Petitioner's answer to Question 6 and on his criminal record as reflected by the appropriate law enforcement agency, specifically a 1983 arrest and plea of guilty to two counts of possession of narcotics and narcotic equipment; a 1974 arrest for possession of stolen property; and, a 1980 arrest for disorderly conduct. An additional specific ground stated by the Commission was Petitioner's adjudication of incompetency.

   
   

4. Petitioner was arrested in 1974 in Dade County Florida for possession of stolen property but the charges were later dropped because Petitioner had no knowledge of the property being stolen by his friend whose home the property was found in and where Petitioner was when arrested.

   
   

5. Petitioner was arrested in 1980 in Ft. Lauderdale, Florida for disorderly conduct. This charge stemmed from Petitioner's action as a result of his nervous disorder. There is no evidence that Petitioner was convicted but only that he was admitted to a Veteran's Hospital for treatment.

   
   

6. Petitioner was arrested in 1983 on charges of possession of narcotics and narcotic equipment. Whether Respondent plead guilty to these charges or to charges concerning possession of a valium capsule given to him by his mother for which he did not have a prescription is unclear but Respondent was placed on "non-reporting" probation for six (6) months and submitted to psychological treatment at the Veteran's Hospital for two (2) months.

7. While in the United States Air Force, Petitioner served in the military police and was honorably discharged for medical reasons due to Petitioner suffering from a psychiatric disorder.

   
   

8. Petitioner has not been adjudicated incompetent by a court of competent jurisdiction in accordance with Section 744.331, Florida Statutes, however, Petitioner was rated incompetent by the Veteran's Administration and on January 6, 1982, in accordance with Chapter 293, Florida Statutes (now Section 744.602 - 744.649; Florida Statutes) referred to as the "Veteran's Guardianship Law", Roy

   H. Brook, Jr. was appointed guardian of the estate of the Petitioner. (See Respondent's exhibit 9)

   
   

9. The Veteran's Administration no longer rates Petitioner incompetent nor does it require a guardian to handle Petitioner's estate.

   
   

10. Petitioner suffers from a mental disorder that can be controlled by medication. Petitioner is on medication that controls his mental problem. Petitioner understands the need for treatment and also understands that failure to take the medication as prescribed could result in substantial harm to himself.

    
    

11. During a period of time when Petitioner was not on medication, or for some other reason, did not have his mental problem under control, he was: in and out of psychiatric wards in the United States and in Central America; in trouble with the law; had suicidal tendencies; attempted to purchase a home for

    $180,000 on an income of approximately $1,800 per month; and, even called the FBI threatening to kill President Reagan because of President Reagan's policy toward reducing Veteran's benefits.

    
    

12. The Veteran's Administration, due to Petitioner's improved mental conditions has reduced Petitioner's rating for disability benefits from 100 percent to 70 percent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 475.181(1)(2), Florida Statutes (1983) provides in pertinent part as follows:

    
    

    1. The department shall license any applicant whom the commission certifies to be qualified to practice as a broker or salesman.

    2. The commission shall certify for licensure any applicant who satisfies the requirements of ss. 475.17 and 475.175...

       
       

15. Section 475.17(1)(a), Florida Statutes (1983) provides in pertinent part as follows:

    
    

    An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, trustworthy,

    and of good character and shall have a good reputation for fair dealing. An applicant for an active broker's license or salesman's license shall be competent and qualified to make real estate transaction and conduct negotiations there for with safety to investors and to those with whom he may undertake a relationship of trust and confidence.

    
    

16. Section 120.60(2), Florida Statutes in pertinent part provides:

    
    

    Each agency, upon issuing or denying a license shall state with particularity the grounds or basis for the issuance or denial of the licensed except when issuance is a ministerial act....

    
    

17. The Commission notified Petitioner that the Commission did not feel that he had the necessary qualifications for licensure and based its denial of licensure specifically on Petitioner's adjudication of incompetency and his criminal record which included: an arrest in 1974 for possession of stolen property; an arrest in 1980 for disorderly conduct; and, an arrest and plea of guilty to two (2) counts of possession of narcotics and narcotic equipment.

    
    

18. Although Petitioner stated that he had been adjudicated incompetent by the Veteran's Administration in 1981, what happened was that the Petitioner had been rated incompetent by the Veteran's Administration to handle his estate and a guardian had to be appointed in accordance with Chapter 293, Florida Statutes. That rating by the Veteran's Administration no longer applies and Petitioner is allowed to handle the funds received from the Veteran's Administration on his own.

    
    

19. Excluding the 1974 arrest in which charges were dropped, all of Petitioners criminal record stems from his mental problems during a period of time when Petitioner's mental problem was not under control as it is presently and should not form a basis to determine Petitioner's competency and qualifications "to make real estate transactions and conduct negotiations there for with safety to investors and to those with whom he may undertake a relationship of trust and confidence", any more than a prior rating of incompetency to handle his financial affairs by the Veteran's Administration.

    
    

20. Just as a non-dangerous mentally ill person should not be deprived of his liberty, the Petitioner should not be deprived of the right to seek gainful employment because of his mental illness when such illness can be controlled with medication. The Petitioner has shown that his mental problem is being controlled by medication. The Petitioner has met his burden of proof to establish that he satisfies the requirements prescribed in Chapter 475; Florida Statutes to be licensed as a real estate salesman.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Commission enter a final order GRANTING Petitioner licensure as a real estate salesman.

Respectfully submitted and entered this 23rd day of May, 1986, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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 23rd day of May, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0123

The following constitutes my specific rulings pursuant to Section 120.59(2); Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case.

Petitioner Did Not Submit Any Proposed Findings of Fact

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Adopted in Finding of Fact 1.

2. Adopted in Finding of Fact 2.

3. Adopted in Finding of Fact 3.

4. Adopted in Finding of Fact 7.

5. Adopted in Finding of Fact 8, except for the language "adjudicated" for which "rated" was substituted.

6. Adopted in Finding of Fact 6 but clarified.

7. Adopted in Finding of Fact 4 but clarified to show that charges were dropped.

8. Adopted in Finding of Fact 5 but clarified to show no conviction and that he was admitted to Veteran's Hospital for treatment.

9. Adopted in Finding of Fact 10 as clarified.

10. Adopted in Finding of Fact 11 as clarified.

11. Adopted in Finding of Fact 11 as clarified.

12. Adopted in Finding of Fact 11 as clarified.

13. Adopted in Finding of Fact 11 as clarified.

COPIES FURNISHED:

Isidore A. Bustamante 19406 NW 54th Place

North Miami, Florida 33055

Lawrence S. Gendzier Suite 212

400 South Robinson Street Orlando, Florida 32501

Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee Florida 32301

Salvatore A. Carpino General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee Florida 32301

Harold Huff, Executive Director Division of Real Estate

Department of Professional Regulation Post Office Box 1900

Orlando, Florida 32801

Docket for Case No: 86-000123

Orders for Case No: 86-000123