STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER MORGAN SHERMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2965

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 6, 1987, at Pensacola, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: Mr. Roger Sherman, pro se

900 Fort Pickens Road, Number 322

Pensacola, Florida 32561

For Respondent: Lawrence S. Gendzier, Esquire

Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

ISSUES AND INTRODUCTION

The basic issue is whether the Petitioner is qualified for registration as a real estate salesman. The Florida Real Estate Commission denied Petitioner's application and Petitioner timely requested a formal hearing.

Following the hearing a transcript of the proceedings at hearing was filed on January 26, 1987, and the parties were allowed until February 10, 1987, within which to file their proposed recommended orders. Thereafter, at the request of the Petitioner the time for filing proposed recommended orders was extended to February 20, 1987. The Respondent filed a timely proposed recommended order. The Petitioner's proposed recommended order was filed one day late. The substance of all of the findings of fact proposed by both the Petitioner and the Respondent have been accepted and are incorporated into the findings of fact which follow. A number of additional findings of fact have also been made.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact.

1. On April 21, 1986, the Petitioner filed an application for licensure as a real estate salesman. By letter dated August 7, 1986, the Petitioner was advised that his application had been denied by the Florida Real Estate Commission. The denial letter stated the following grounds:

   
   

   Specifically, the denial is based upon your resignation from the Florida Bar Association, and your 1983 arrest and conviction for violating three counts of Sec. 7203 Internal Revenue Code and Title 26 US Code Sec. 7203.

   
   

2. The parties agree that the Petitioner is qualified in all respects for the licensure he seeks other than with regard to the matters specifically mentioned in the above-quoted portion of the denial letter. The legal consequences of those matters are disputed.

   
   

3. The Petitioner is a 44-year-old man who has continuously resided in the state of Florida since 1952. He was raised in a home that provided him with above average opportunities, from which he profited by receiving an excellent formal education which concluded with a law degree. He was licensed to practice law in the state of Florida from 1967 until July of 1985. During that time he achieved a statewide reputation as an expert in the field of worker compensation law.

   
   

4. During the early and middle years of the 1970's, the Petitioner began to have marriage and family problems at the same time he was becoming more and more disenchanted with his chosen profession. Although he managed to continue to successfully manage his professional affairs, he began to neglect his family and personal affairs. This neglect resulted in a dissolution of his marriage and in his failure to file final 1040 Federal Income Tax Returns for the years 1978, 1979, and 1980.

   
   

5. The Petitioner's failures to file income tax returns for three years were acts of omission; failures to perform a statutory duty. They were not acts involving any fraudulent intent to evade or to avoid income taxes. Contraindicating any such fraudulent intent is the fact that partnership informational returns which accurately set forth the Petitioner's gross income for the years 1978, 1979, and 1980 were filed on his behalf and he had filed and been granted requests for extensions of time to file final returns for each of the three years. The extended filing date for the last of the three subject returns expired in either June or September of 1981.

   
   

6. As a result of the omissions described above, on or about September 1983, the Petitioner pled guilty to and was convicted of three counts of violating Section 7203, Internal Revenue Code, and Title 26, United States Code, Section 7203. On September 12, 1983, Petitioner was sentenced by the U.S. District Court for the Northern District of Florida to three concurrent 1-year terms of imprisonment and a fine of $15,000, followed by five years of probation.

   
   

7. On July 5, 1984, the Florida Supreme Court granted leave for the Petitioner to resign from the Florida Bar during the pendency of disciplinary proceedings based on the conviction described above. The Supreme Court order granting leave for Petitioner to resign also provides that he has the right to reapply for reinstatement. One of the main reasons for Petitioner's decision to resign from the Florida Bar was a strong feeling that he never wished to

   practice law again because he felt that the practice of law was an unenjoyable and onerous occupation which placed his mental and physical health at risk.

   
   

8. Petitioner currently owes perhaps as much as $80,000 in unpaid taxes. He has already paid the $15,000 in fines and has paid approximately $40,000 in back taxes.

   
   

9. Prior to the Petitioner's convictions for failing to file income tax returns, the Petitioner had an excellent reputation for honesty, truthfulness, trustworthiness, good character, and fair dealing. Since his conviction the Petitioner has continued to enjoy an excellent reputation for honesty, truthfulness, trustworthiness, good character, and fair dealing.

   
   

10. In the more than five years which have elapsed since the Petitioner's inactions which led to his conviction, the Petitioner has been involved (except for the period of his incarceration) in a series of lawful employment activities. There is no evidence that during the more than five years since the Petitioner's failures to file tax returns that he has acted other than as an honest, responsible, productive member of society doing his best to pay his debt to society, put the past behind him, and get on with the rest of his life.

    There is also no competent substantial evidence that any action or inaction of the Petitioner caused any harm to the interests of any of his clients.

    
    

11. Because of the lapse of time since the conduct which resulted in the Petitioner's conviction and because of his subsequent good conduct and subsequent excellent reputation, it does not appear that the interests of the public and investors are likely to be endangered if the Petitioner is granted the license he seeks. His only crimes were misdemeanors and they resulted from his inattention to his own affairs, not from inattention to any matter entrusted to him by a client.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Fla. Stat.

    
    

13. Section 475.17(1)(a), Florida Statutes, reads as follows in pertinent part:

    
    

    (1)(a) An applicant for licensure who is

    a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing... If the applicant has been

    denied registration or a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result

    under this chapter, or 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. (emphasis added)

    
    

14. Statutory grounds for imposing discipline against a licensee include the following pertinent language from Section 475.25(1)(f), Florida Statutes:

    
    

    (f) Has been convicted or found guilty, regardless 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.

    
    

15. Turning first to the matter of Petitioner's resignation from the Florida Bar, Section 475.17(1)(a), Florida Statutes, does not contain any mention of resignations from the bar or voluntary relinquishment of a license to practice a regulated profession. In this regard the statute speaks only to applicants who have been "disbarred" or whose license to practice has been "revoked or suspended." The Petitioner was not disbarred, nor was his license revoked or suspended. Rather, he was allowed to resign with the right to reapply for reinstatement. The Respondent argues that resignation during the pendency of disciplinary proceedings is "tantamount" to a revocation or suspension. On the facts of this case the argument is misplaced because the Petitioner had good and sufficient motivation to resign quite apart from the pending disciplinary proceedings. Further, it is by no means clear that the end result of the then-pending disciplinary proceedings would have been a revocation or suspension of Petitioner's right to practice law.

    
    

16. With regard to the assertion that the Petitioner's conviction of three counts of failure to file tax returns is a conviction of the type encompassed by Section 475.25(1)(f), Florida Statutes, it is first noted that such conviction does not directly relate to the activities of a licensed broker or salesman.

    The Petitioner's conviction had nothing to do with any aspect of any type of real estate transaction, nor does the conviction reflect in any way on his ability to engage in the real estate business. Further, the crime for which Petitioner was convicted is not a crime involving moral turpitude. (See Pearl

    v. Fla. Bd. of Real Estate, 394 So.2d 189 (Fla. 3d DCA 1981), which contains numerous examples of what does and does not constitute moral turpitude.) And, finally, it is clear that the crime for which the Petitioner was convicted did not involve fraudulent or dishonest dealing. Therefore, the crime for which the Petitioner was convicted does not come within the scope of Section 475.25(1)(f), Florida Statutes.

    
    

17. As a final matter, even if it were to be concluded that the Petitioner's resignation from the bar and his conviction of failing to file tax returns were appropriate bases for disqualification (which, of course, is not

the conclusion I have reached), the Petitioner would still be entitled to licensure under the portion of Section 475.17(1)(a), Florida Statutes, which reads

... 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.

As noted in the findings of fact, for more than five years since the inactions which led to Petitioner's convictions, his conduct has been good and he has continued to enjoy an excellent reputation for honesty, truthfulness, trustworthiness, good character, and fair dealing. When this period of good conduct and good reputation is considered in light of the fact that none of the Petitioner's conduct caused injury to any client, it is most unlikely that the public and investors would be endangered by granting the licensure sought by the Petitioner. In this regard, see, generally, Aquino v. Dept. of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983), and State ex rel. Corbett v.

Churchwell, 215 So.2d 302 (Fla. 1968).

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Florida Real Estate Commission issue a Final Order concluding that the Petitioner is qualified for the licensure he seeks.

DONE AND ENTERED this 26th day of February, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 26th day of February, 1987.

COPIES FURNISHED:

Mr. Roger Sherman

900 Fort Pickens Road, #322

Pensacola, Florida 32561

Lawrence S. Gendzier, Esquire Assistant Attorney General Suite 212

400 West Robinson Street Orlando, Florida 32801

Harold Huff, Executive Director Department of Professional

Regulation

Division of Real Estate Suite 212

400 West Robinson Street Orlando, Florida 32801

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

ROGER MORGAN SHERMAN,

Petitioner,

vs. DOAH Case No. 86-2965

FLORIDA REAL ESTATE COMMISSION,

Respondent.

/

FINAL ORDER

The Florida Real Estate Commission heard this case on March 18, 1987 to issue a Final Order.

Hearing Officer Michael M. Parrish of the Division of Administrative Hearings Presided over a formal hearing on January 6, 1987. On February 26, 1987, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact. As to the Conclusions of Law and Recommendation, the Recommended Order is rejected. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof.

The Commission finds that the Petitioner's resignation from the Florida Bar is tantamount to a suspension. The Commission further finds that Petitioner was convicted of a crime of moral turpitude and that not enough time has elapsed since the criminal episode. It is therefore ORDERED that the Petitioner be denied application for a real estate license.

This Order shall be effective on the date of filing with the Clerk of the Department of Professional Regulation. This Order shall be appealed to the District Court of Appeal within 30 days from filing date.

DONE AND ORDERED this 18th day of March 1987 in Orlando, Florida.

Harold R. Huff, Director Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Roger Morgan Sherman, 900 Ft. Pickens Road #322, Pensacola, Beach, Florida 32561; to Hearing Officer Michael Parrish, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and to Lawrence Gendzier, Assistant Attorney General, Suite 212, 400 West Robinson, Orlando, Florida 32801, this 23rd day of March, 1987.

Harold R. Huff

Docket for Case No: 86-002965

Orders for Case No: 86-002965