STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELIZABETH A. ATKINSON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-0453

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

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and on March 27, 1987, a formal hearing was held in this case. See Section 120.57(1), Florida Statutes. The location of the hearing was Room 415, Richard P. Daniel Building, 111 East Coast Line Drive, Jacksonville, Florida. The hearing commenced at 10:00 a.m. The hearing officer was Charles C. Adams. Petitioner did not attend the hearing, nor was she represented at the hearing. Respondent attended the hearing in the person of its counsel. Respondent's counsel did not request the preparation of a transcript of the proceedings and waived the opportunity for submission of a proposed recommended order.

APPEARANCES

FOR PETITIONER: No appearance

FOR RESPONDENT: Lawrence S. Gendzier, Esquire

Assistant Attorney General Florida Real Estate Commission

400 W. Robinson, Room 212 Orlando, Florida 32801

ISSUES

The issues presented concern the question of the entitlement of the Petitioner, Elizabeth A. Atkinson, to be licensed as a real estate salesman in the state of Florida, as contemplated by Chapter 475, Florida Statutes.

FINDINGS OF FACT

1. Petitioner made application with the State of Florida, Department of Professional Regulation, Division of Real Estate, to be licensed as a real estate salesman. This application was received on July 15, 1986, by the Florida Real Estate Commission. A copy of that application form may be found as Respondent's Exhibit 2 admitted into evidence.

   
   

2. Question 6 in the application states: "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?" Petitioner answered this question in the affirmative, and in response to instructions in that questionnaire undertook to make explanation of her criminal record. That explanation was to this effect:

   
   

   I was convicted in 1972 of Fraudulent Use of Credit Card this was a credit card that was mine during my marriage [sic] and I used this during our separation [sic] and my ex-husband pressed charges. Then I was also convicted of worthless check charges these were my own and restitution has been made.

   
   

3. In the face of this revelation by the Petitioner concerning her criminal background and having ascertained what it believed to be a more comprehensive explanation of the Petitioner's involvement in criminal activities, the Florida Real Estate Commission determined to deny the application for licensure. Respondent's Exhibit 1 admitted into evidence is a copy of a letter from counsel for the Respondent to Petitioner identifying what the Respondent perceived to be a depiction of the criminal activities of the Petitioner. When confronted with a denial of her request for licensure Petitioner timely sought a formal hearing to prove her entitlement to licensure. The case was assigned to the Division of Administrative Hearings and the hearing date of March 27, 1987, was established.

   
   

4. Notwithstanding the provision of notice and the remarks by Petitioner to Respondent's counsel which created the impression that the Petitioner would appear at the hearing session, Petitioner did not attend the hearing and was not represented at the hearing.

   
   

5. In addition to the previous exhibits which Respondent offered and which have been addressed in the fact finding, Respondent offered, and it was admitted into evidence, a third exhibit, correspondence from the petitioner to a Ms. Clayton. This correspondence appears to be a further attempt on the part of the Petitioner to explain the circumstance of her criminal activity.

   
   

6. In accordance with Rule 1.370, Florida Rules of Civil Procedure, and Rule 22I-2.12(1)(h), Florida Administrative Code, Respondent made request for admissions from the Petitioner on February 16, 1987. The request for admissions document instructed the Petitioner in the following fashion:

   
   

   Pursuant to the Rules cited above, you are hereby required to specifically admit or deny the following facts in writing. If objection is made to any of the following, then you are required to state in writing your reasons therefor. You are further required to submit the original and one copy of this document, when completed, to the Hearing Officer in this cause, and one copy to the attorney for the Respondent, within 30 days.

   
   

7. In substance, it was requested of the Petitioner that she admit:

   1. On or about January 12, 1973, Petitioner was charged with issuing a worthless check. Adjudication of guilt was withheld, and Petitioner was placed on probation for one year.

      
      

   2. On or about May 17, 1973, Petitioner was charged with two counts of worthless checks and probation violation.

      
      

   3. On or about September 5, 1973, Petitioner was charged with two counts of worthless checks, contempt of court, and probation violation.

      
      

   4. On or about October 16, 1973, Petitioner was charged wish fraudulent and illegal use of credit cards and probation violation.

      
      

   5. On or about April 7, 1975 and April 17, 1975, Petitioner was arrested on worthless check charges.

      
      

   6. On or about June 1, 1975, Petitioner was arrested for inmate of a house where drugs are used, worthless checks, contempt, and failure to appear charges.

      
      

   7. On or about February 17, 1978, Petitioner was arrested on worthless check charges and adjudicated guilty of said charges. Petitioner was sentenced to five years of state prison and three years of probation; 56 months of the prison sentence were suspended.

      
      

   8. On or about June 2, 1978, Petitioner

      was charged with worthless check charges and adjudicated guilty of said charges, and sentenced to 30 days of jail time.

      
      

   9. On or about September 7, 1978, Petitioner was charged with issuing a worthless check.

      
      

   10. On May 13, 1985, Petitioner was charged with a probation violation and issuing a worthless check.

       
       

8. Respondent's counsel stated in the course of the final hearing that the Petitioner had promised responses to the request for admissions but had not made those available prior to the final hearing. Under the circumstances, Respondent's counsel asked that the hearing officer deem those matters set forth in the request for admissions established as fact. The request was granted, and the request for admissions was deemed established and provided a basis for fact finding.

9. On March 27, 1987, at 11:32 a.m., the office of the Division of Administrative Hearings received the Petitioner's response to the request for admissions. That document is being transmitted with this recommended order. In her response, the Petitioner acknowledges the factual accuracy of all paragraphs, save numbers 6 and 10. In paragraph 6, she denies that she was arrested as being an inmate of a house where drugs are used and appears to emphasize an acknowledgment of the arrest for worthless checks dating from June 1, 1975. In responding to paragraph 10 of the request for admissions which concerns charges against the Petitioner for probation violation and issuing a worthless check dating from May 13, 1985, Petitioner states: "This was not a new charge but a formality to have the judge terminate the probation period which I had to have been terminated several years prior to this date."

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Section 120.57(1), Florida Statutes.

    
    

11. Section 475.17, Florida Statutes, sets forth the qualifications for those persons who intend to practice the business of real estate in the state of Florida. Among the qualifications at Section 475.17(1)(a), Florida Statutes, it is stated:

    
    

    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...

    
    

12. The effect of the denial by the State is one which brings into question the Petitioner's honesty, truthfulness, trustworthiness, good character and good reputation for fair dealing. Given the denial, it was necessary for the Petitioner to offer proof which would demonstrate her entitlement to licensure in all particulars and especially related to matters of concern related to her integrity, as described in this discussion. Petitioner made no attempt and offered no explanation of her entitlement to licensure. Therefore, she has failed to sustain the burden of proving that entitlement to licensure. Additionally, Respondent, through its proof as set forth in the request for admissions, and Petitioner, through her concessions in response to the request for admissions filed with the Division of Administrative Hearings on March 27, 1987, have confirmed the propriety of the licensing agency's decision to deny licensure.

Upon consideration of the facts found and the conclusions of law reached, it is,

RECOMMENDED:

That a final order be entered which denies Elizabeth A. Atkinson a license to be a real estate salesman in the state of Florida.

DONE AND ENTERED this 3rd day of April, 1987, at Tallahassee, Florida.

CHARLES C. ADAMS

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 April, 1987.

COPIES FURNISHED:

Elizabeth A. Atkinson Post Office Box 915 Yulee, Florida 32097

Lawrence S. Gendzier, Esquire Assistant Attorney General Florida Real Estate Commission Room 212

400 W. Robinson Orlando, Florida 32801

Harold Huff, Executive Director Florida Real Estate Commission Room 212

400 W. Robinson Street Orlando, Florida 32801

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, General Counsel Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 87-000453

Orders for Case No: 87-000453