STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER B. WOZNIAK, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2018

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

The formal administrative hearing in this case was held on June 17, 1987, in Orlando, Florida. Appearing for the parties were:

For the Petitioner: Roger B. Wozniak, Pro Se

14 Hickory Hill Road Tequesta, Florida 33469

For the Respondent: Lawrence S. Gendzier, Esquire

Assistant Attorney General

400 West Robinson, Room 212 Orlando, Florida 32801

The issue in this case is whether the Petitioner is qualified for licensure as a real estate salesman.

The Petitioner presented his own testimony and fifteen exhibits which were admitted into evidence. The Respondent presented four exhibits which were admitted into evidence. There is a transcript. The parties submitted proposed recommended orders.

FINDINGS OF FACT

1. The Petitioner, Roger B. Wozniak, applied for Florida licensure as a real estate salesman on February 25, 1987. R. Ex. 1. The Florida Real Estate Commission proposed to deny his application due to his answers to questions 6, 13, and 14, in his application, and his admission that he was not a Florida resident as of March 18, 1987. (Letter to the Petitioner dated May 3, 1987, from Randy Schwartz, Assistant Attorney General, which accompanies the request for formal administrative hearing and request for assignment of hearing officer, filed in the files of the Division of Administrative Hearings, and now officially recognized.) The answers to questions 6, 13, and 14 concern the Petitioner's conviction which will be discussed in subsequent findings of fact.

   
   

2. On the date that he applied for licensure, the Petitioner was not a Florida resident. T. 26.

3. At the time of the formal administrative hearing, the Petitioner was and is now a Florida resident, and resides in Tequesta, Florida, with his family. P. Exs. 13 and 14; T. 11, 24. He closed on his home in Tequesta on June 10, 1987. T. 24.

   
   

4. The Petitioner was licensed as a real estate salesperson in Illinois from 1967 until the early 1980's. P. Ex. 1; T. 12. He worked as a licensed real estate salesperson and real estate appraiser during these years in Illinois. Id.

   
   

5. By indictment filed on October 4, 1984, the Petitioner was charged with multiple felony counts involving twelve false applications for FHA and VA loans, obstruction of justice, and failure to report income for income tax purposes.

   P. Ex. 15. The first offense was alleged to have occurred on January 29, 1980, and the last offense was alleged to have occurred on December 6, 1982. Id. In January, 1985, the Petitioner was convicted of counts one through nine, eleven, twelve, fourteen, and fifteen. T. 13, 29; R. Ex 15. He was initially sentenced to a term of imprisonment for two years on counts one, fourteen and fifteen, concurrently. On June 24, 1985, the sentence was modified by suspension of the sentence of imprisonment and imposition of five years probation. P. Ex. 15.

   
   

6. In his application, the Petitioner provided the Real Estate Commission with P. Ex. 15. T. 30, 36. (This exhibit was referred to by counsel as exhibit A, but became P. Ex. 15.) P. Ex. 15 contained only the indictment and the last order reducing his sentence, but from these documents the Real Estate Commission could easily discern the counts upon which the Petitioner was found guilty because the sentencing order was accompanied by a form which completely lists the counts upon which sentence was premised. Thus, in his application the Petitioner disclosed all material matters concerning his conviction.

   
   

7. As a result of his conviction, the State of Illinois revoked the Petitioner's real estate license. T. 13.

   
   

8. Following his conviction, the Petitioner attended real estate courses taught by the Real Estate Education Company in Chicago, Illinois, receiving credit for courses in basic real estate transactions, advanced real estate principles, contracts and conveyances, finance, and appraisal. P. Exs. 2 and 4.

1. In December, 1986, the Petitioner became a designated member of the National Association of Real Estate Appraisers, and became entitled to the designation of Certified Real Estate Appraiser (C.R.E.A.). P. Ex. 3. He is listed in the 1987 national directory of the National Association of Real Estate Appraisers as a Certified Real Estate Appraiser. P. Ex. 10.

   
   

2. In February, 1987, the Petitioner received a certificate for completion of a three hour training session and satisfactory completion of a written test sponsored by the National Association of Realtors. P. Ex. 5.

   
   

3. Prior to his felony conviction, the Petitioner was enrolled as a correspondence student in the California Coast University. T. 16. He completed his course of study, and on March 19, 1987, he received a bachelor of science degree in business administration from California Coast University. P. Ex. 9 and 6.

   
   

4. As a part of his five year probation, the Petitioner was required to undergo counseling. He was referred to a Dr. Schneider and Dr. Indovina of the DuPage County Health Department in Wheaton, Illinois. He was first seen by Dr. Schneider on November 21, 1985. Both Dr. Schneider and Dr. Indovina were of the

   opinion that the Petitioner had made considerable-progress since his first referral. As of March 10, 1987, both physicians were of the opinion that the Petitioner had learned the consequences of his past behavior and would not engage in illegal behavior in the future. P. Ex. 8.

   
   

5. The Petitioner is currently licensed by the State of Illinois as an insurance producer, and that license was never revoked by Illinois for Petitioner's felony conviction. P. Ex. 11; T. 32.

   
   

6. After an administrative hearing at which the Petitioner presented evidence of rehabilitation, the State of Illinois reissued Petitioner's real estate salesperson license. P. Ex. 12; T. 31, 22-23. The Petitioner currently holds a real estate salesperson license from Illinois. Id.

   
   

7. The Petitioner is currently serving the remainder of his probation, having about three more years of probation to serve. He reports monthly to a probation officer in West Palm Beach.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties to this proceeding.

   
   

9. Section 475.17(l) (a), Fla. Stat. (1986) provides in part that "[a]n applicant for licensure...shall be...a bona fide resident of the state.

   
   

10. The Respondent argues that the applicant must be a bona fide resident of the state on the date that the application is filed, and that since the Petitioner was not such a resident on that date, which the Petitioner admits, the Respondent properly denied the application. It may be true that the Respondent initially denied the application in free form action for a valid reason (nonresidence) existing at that time, but that reason no longer exists as a-basis for denial of the application. Section 475.17(1) (a) does not explicitly state that the applicant must be a resident at the time of application, but only that the "applicant" be such a resident. The Petitioner is still an applicant. His application is still pending before the Respondent, and has only been preliminary denied as a matter of free form agency action. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 785 (Fla. 1st DCA 1981). The application remains pending until a final order is entered following the formal administrative hearing. A formal administrative hearing is not an appeal from final agency action, but is a de novo hearing for the formulation of final agency action. McDonald V. Division of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1977). Absent explicit statutory guidance that fixes the date for consideration of facts, the agency must consider all facts as such facts may have evolved to the date of the formal administrative hearing and as may be presented at that hearing. Thus, it is legally incorrect to deny the Petitioner's application for nonresidence.

    
    

11. Section 475.17(1) (a) , Fla. Stat. (1986) also provides that an applicant must be "honest, trustworthy, and of good character and shall have a good reputation for fair dealing." It further provides that:

    
    

    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,... 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.

    
    

12. Section 475.25(1)(b), Fla. Stat. (1986) provides that the Commission may deny an application for licensure or may suspend or revoke a license if the applicant or licensee has "been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, or breach of trust in any business transaction..." Subparagraph (f) of the same statute provides that the Commission may deny a application for licensure or may suspend or revoke a license if the applicant or licensee has "been convicted... 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." Subparagraph (g) of the same statute provides that the Commission may take the same action if the applicant or licensee has "had a broker's or salesman's license revoked, suspended, or otherwise acted against, by the real estate licensing agency of another state, territory, or country."

    
    

13. The Petitioner's real estate license was revoked by the State of Illinois for conduct (conviction of fraud and misrepresentation concerning real estate transactions) which would have been grounds for revocation in Florida, as well as denial of an application for licensure. Sections 475.17(l) (a) and 475.25(1), Fla. Stat. (1986). The only question in this case is whether the Petitioner meets the rehabilitation standard of section 475.17(1)(a) that "... 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."

    
    

14. Section 475.17(1)(a), Fla. Stat. (1986) does not provide explicit guidance for determining the length of the "lapse of time" that would be sufficient to warrant licensure despite prior misconduct except to say that the lapse of time must be sufficient to warrant a conclusion that "the interest of the public and investors will not likely be endangered by the granting of registration." Id.

    
    

15. The Petitioner was convicted of serious offenses involving fraud in numerous real estate transactions occurring over a three year period, January, 1980, through December, 1982-. He was not convicted and sentenced until January, 1985. Thus, only two and one-half years have elapsed since the conviction. The Petitioner still has three years remaining to be served on his probation.

    
    

16. Despite a lack of guidance from the statute and the lack of case law on the point, it would be reasonable to conclude that the lapse of time

    necessary for there to be a conclusion that the public interest will not likely be endangered should be directly related to the relationship of the offenses committed to the practice of the real estate profession. Here, the offenses involved matters of trust and honesty in the conduct of the real estate profession. Offenses of this type more substantially give rise to concern for the likelihood of danger to the public interest than had the offenses not involved matters of trust and honesty in the profession. Consequently, it is reasonable to conclude that a greater lapse of time is needed to provide adequate evidence that there is now a likelihood of no danger to the public interest.

    
    

17. It would also be reasonable to conclude that the lapse of time for rehabilitation should be directly related to the length of time of the misbehavior. A single act of misconduct typically gives rise to lesser concerns for future danger to the public interest than a pattern of misbehavior over a lengthy period of time. The longer the period of time over which the offenses occurred, the greater likelihood that deeply ingrained character traits may be involved. A deeply ingrained character trait will probably require a greater length of time and greater effort to change than a one time lapse of character. Here, the offenses occurred continuously over a three year period, and were part of a continuous pattern. Consequently, the lapse of time following these offenses should be correspondingly greater than had the offense been a one time aberration from an otherwise unblemished pattern of honest behavior.

    
    

18. The record indicates that the Petitioner has taken substantial steps toward rehabilitation. Perhaps the most important has been to have again obtained a salesperson's license from the State of Illinois. If he continues to progress in his rehabilitation in the same way, a time should come in the future for licensure as a real estate salesman in Florida.

    
    

19. However, given the nature of the offenses committed the length of time over which those offenses were committed, the-fact that several years of probation remain to be served, and the length of time that has elapsed since conviction compared to the length of time that the offenses were committed, it is too soon to grant the application for licensure.

RECOMMENDATION

For these reasons, it is recommended that the Florida Real Estate Commission enter its final order denying the application of Roger B. Wozniak for licensure as a real estate salesman in Florida.

DONE and ENTERED this 27th day of July, 1987.

WILLIAM C. SHERRILL, JR.

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 27th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2018

The following are rulings upon findings of fact proposed by the parties (using the numbers used by the parties) which have been rejected.

Findings of fact proposed by the Petitioner:

2-6. There was no evidence presented concerning the deliberations of the Florida Real Estate Commission. Moverover, this evidence is subordinate to finding of fact 1.

Findings of fact proposed by the Respondent:

5. A finding of fact that the Petitioner was elusive cannot be made on this record. As discussed in finding of fact 6 above, the Petitioner candidly provided the Real Estate Commission with a copy of the materials in P. Ex. 15, and from those documents one can easily determine the counts upon which the Petitioner was adjudicated guilty.

8. The two year prison term was suspended.

1. The Petitioner has in fact taken occupancy. There is no contrary evidence in the record.

2. While the voter's registration is evidenced by a temporary card, the temporary card clearly states that it is only to be used until a permanent voter identification card is received. It is inferred that the temporary card is issued only when a permanent voter's registration will soon be issued. There is no evidence in the record that the Petitioner has only registered temporarily.

COPIES FURNISHED:

Harold Huff, Executive Director Florida Real Estate Commission

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802

Van Poole, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Joseph A. Sole, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

Roger B. Wozniak

14 Hickory Hill Road Tequesta, Florida 33469

Lawrence S. Gendzier, Esquire Assistant Attorney General Room 212, 400 West Robinson

Orlando, Florida 32801

Docket for Case No: 87-002018

Orders for Case No: 87-002018