STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY R. ERICKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3656

) 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 October 8, 1986 in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Jerry R. Erickson, pro se

1500 North Congress Avenue, #A-35 West Palm Beach, Florida 33401

For Respondent: Lawrence S. Gendzier, Esquire

400 West Robinson Street, Suite 212 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 September 15, 1986, advising petitioner, Jerry R. Erickson, that his application for licensure as a real estate salesman had been denied because of petitioner's criminal record. Upon petitioner filing a request for hearing to contest this decision, the matter was forwarded by respondent to the Division of Administrative Hearings on September 17, 1986. By notice of hearing dated September 26, 1986, a final hearing was scheduled for October 8, 1986 in West Palm Beach, Florida.

At final hearing, petitioner testified on his own behalf and presented the testimony of Dr. Susan Lafehr-Hession, Joseph E. Henderson and Dean L. Willbur, Jr. He also offered petitioner's exhibit 1 which was received into evidence.

Respondent offered respondent's exhibits 1-4. All were received into evidence.

The transcript of hearing was filed on October 20, 1986. Respondent filed proposed findings of fact and conclusions of law on October 27, 1986. A ruling on each proposed finding of fact is in the Appendix attached to this Recommended Order.

The issue 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, Jerry R. Erickson, who is now thirty years old, made application on May 29, 1986 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:

   
   

   February 10, 1984 incurred several felonies, all drug and alcohol related, there were several incidents in my past that were drug and alcohol related. (See attached letters).

   
   

3. A subsequent background check by respondent revealed the following arrests and/or convictions:

   
   

   1980 - Arrest for driving while under the influence.

   1982 - Arrest for trespassing after warning and assault and battery.

   1982 - Arrest and conviction for

   driving while under the influence.

   1983 - Disorderly intoxication ar- rest.

   1984 - Arrest and conviction for armed burglary, kidnap, false

   imprisonment, aggravated assault, and burglary to a business.

   
   

4. Although arrested on the above five occasions, he was convicted only twice. For the most recent conviction in 1984, Erickson was allowed to enter into a negotiated plea whereby he received 455 days incarceration, two years community control, and ten years probation, each to run consecutively. 1/ Because of his record, petitioner's application for licensure was denied by respondent on September 15, 1986.

   
   

5. Erickson's problems are directly related to alcohol and drug addiction. Its origin began at age thirteen when he was given valium by his parents for hyperactivity. Following this exposure to drugs, Erickson freely admits that he abused alcohol and drugs until early February, 1984. Having taken a large dose of valiums over a 48 hour period, and still not being able to sleep, Erickson entered a drug store on February 9, 1984 and demanded, at gunpoint, an ampule of morphine to help him calm down. For that episode, he was arrested and charged with a number of serious crimes. Apparently recognizing that Erickson's underlying problem of drug and alcohol addiction was the reason for his actions,

   the State allowed Erickson to enter a negotiated plea if he could master his addiction problem. He has successfully done so and is now under community control until November, 1986. After that, he must serve 10 years probation. In addition, he must receive an annual psychological review during the term of his probation.

   
   

6. In addition to his own testimony, a psychiatrist, executive vice- president of a bank, and the chief of the public defender's criminal trial division testified on Erickson's behalf. All were aware of Erickson's background and prior legal problems. Erickson was described as being responsible, mature, reliable and honest. The banker stated he would have no hesitation in using Erickson in a real estate transaction and that Erickson has met all obligations on several loans with the bank. The public defender described Erickson's conduct as "exceptional", and that he is one out of perhaps five hundred clients who has been assigned to community control. All felt Erickson had rehabilitated himself.

   
   

7. Erickson desires to become a real estate salesman, and eventually to obtain a broker's license. He is married, has a child, and is employed at a West Palm Beach newspaper. He was most candid and forthright in his testimony and appeared to the undersigned to have rehabilitated himself by reason of good conduct and lapse of time since his 1984 conviction.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

   
   

   (1)(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 appli- cant 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 ap- pears to the commission that the interest of the public and in- vestors will not likely be endan- gered by the granting of registra- tion.

   
   

10. 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).

    
    

11. The record herein established that Erickson, after a dismal record as a youth and young adult, was shown to be honest, trustworthy and of good character. Moreover, by reason of lapse of time and subsequent good conduct he had demonstrated that the public and investors will not be endangered by granting his application. Accordingly, it is concluded that petitioner has satisfied the requirements of Section 475.17, and that his application should be approved.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That petitioner's application for licensure as by examination as a real estate salesman be GRANTED.

DONE AND ORDERED this 31st of October, 1986, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 31st day of October, 1986.

ENDNOTE

1/ Petitioner pled guilty to four counts of false imprisonment, kidnapping without a firearm, and robbery with a deadly weapon. These charges stem from petitioner holding a pharmacist and several other people hostage at gunpoint to obtain drugs.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3656

Respondent:

1. Covered in finding of fact 1 except the application reflects the agency received the application on May 29, 1986.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered in finding of fact 2.

5. Covered in finding of fact 2.

6. Covered in finding of fact 2 and footnote 1.

7. Covered in finding of fact 2.

8. Covered in finding of fact 3.

9. Covered in footnote 1.

10. Covered in finding of fact 3.

11. Covered in finding of fact 3.

12. Covered in finding of fact 4.

13. Covered in finding of fact 4.

14. Covered in finding of fact 4.

15. Covered in finding of fact 4.

COPIES FURNISHED:

Jerry R. Erickson

1500 North Congress Avenue, #A-35 West Palm Beach, Florida 33401

Lawrence S. Gendzier, Esquire

400 West Robinson Street Suite 212

Orlando, Florida 32801

Mr. Harold Huff, Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 86-003656

Orders for Case No: 86-003656