STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELORES W. KINSLER, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2223

)

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on July 16, 1987, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Delores W. Kinsler, pro se

3400 Northwest 50th Avenue Apartment A-201

Lauderdale Lakes, Florida 33319

For Respondent: Lawrence S. Gendzier, Esquire

Assistant Attorney General Suite 212, 400 West Robinson

Orlando, Florida 32801 PRELIMINARY STATEMENT

At issue in this proceeding is whether Petitioner's application for licensure as a real estate salesman should be approved.

At hearing, Petitioner testified on her own behalf, and called Barbara Matlack, Van G. Neilly, and Linda Ward as witnesses. Petitioner's exhibits 1-8 were received into evidence. Respondent called no witnesses, and offered no exhibits.

The transcript of hearing was filed August 5, 1987, and the parties were granted leave until August 17, 1987, to file proposed findings of fact and conclusions of law. Respondent elected to file proposed findings, and they have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Delores W. Kinsler (Kinsler), applied to Respondent, Florida Real Estate Commission (Commission) for licensure as a real estate salesman. Pertinent to this case, the Commission, by letter of May 19, 1987, advised Kinsler that her application was denied because her "criminal record" revealed the following:

   
   

   2/13/80 arrest and plea of no contest and withholding of adjudication to the charge of grand theft in Marion County, Florida

   
   

   11/3/80 arrest for failure to appear on the grand theft charge

   
   

   5/15/84 arrest for probation violation. 1/

   
   

2. The facts underlying Kinsler's "criminal record" reveal that in late 1979 she went to a mobile home dealer in Marion County, Florida, and placed with the dealer a $2,000 check toward the purchase of a mobile home. Subsequently, Kinsler's father receded from his agreement to help her purchase the mobile home, and she returned to the dealer and requested the return of her deposit.

   
   

3. Kinsler experienced some reluctance on the part of the dealer to return her deposit, but following some discussion the dealer did give her a $2,000 check, which she cashed. Subsequently Kinsler placed a stop payment on the check she had given the dealer, and lent that money to a family friend.

   
   

4. Why Kinsler did not promptly repay the dealer, or why she placed a stop payment on her check when she had been reimbursed, is not clear from the proof. The proof does, however, demonstrate that due to the recent death of her fiancee she was under a great deal of stress at the time, and that the lack of clear recall may reasonably be attributable to that stress and the passage of time since those events occurred. In any event, Kinsler did not seek to rationalize her conduct, and forthrightly conceded its impropriety.

   
   

5. As a consequence of her actions, Kinsler was charged with grand theft in Case No. 80-140, Circuit Court, Marion County, Florida. Kinsler plead nolo contendere, and by order of January 12, 1981, the court withheld adjudication and placed Kinsler on three years reporting probation. The terms of her probation also required that she not change her residence or leave the county without the consent of her probation officer and that she make restitution to the mobile home dealer in the sum of $2,150. 2/

   
   

6. Between January 1981 and October 1981, Kinsler paid $50 each month toward the court ordered restitution, and otherwise complied with the terms of her probation. In October 1981, Kinsler moved from Ocala, Florida to Tallahassee, Florida, without the knowledge or consent of her probation officer, and ceased making restitution payments.

   
   

7. In or about March 1984, Kinsler contacted an attorney in Tallahassee to assist her in addressing the problems she had left behind in Ocala. Kinsler's actions were spontaneous and voluntary, and were not the result of any action or activities undertaken by public officials in Ocala.

   
   

8. Subsequently, Kinsler surrendered herself to the police in Ocala for having violated the terms of her probation, was arrested and released on her own

   recognizance. On July 27, 1984, the court entered an order finding that she had violated the terms of her probation, and extended her probation until January 12, 1986.

   
   

9. Since July 27, 1984, Kinsler has complied with all the terms of her probation and made full restitution to the mobile home dealer. On January 12, 1986, Kinsler's term of probation expired.

   
   

10. Between March 1982, and January 1985, Kinsler was employed in various positions by Commercial Credit Corporation, Commonwealth Mortgage Company, and

    J. C. Penny. From January 1985, to the present, Kinsler has been employed by the Florida Department of Transportation in various positions which have, through promotion, progressively increased in responsibility. Currently, she is employed as Right of Way Specialist II, and is responsible for negotiating land acquisitions on behalf of the Florida Department of Transportation.

    
    

11. The proof establishes that sufficient time has elapsed for Kinsler to have demonstrated her rehabilitation. Since 1984 she has held a number of responsible positions. She is currently employed in a position that involves negotiating land acquisitions on behalf of the state, a position imbued with great public trust. The testimony is uncontroverted that she has a reputation for fair and honest dealings. From such proof, as well as Kinsler's candor and demeanor, it is concluded that the interest of the public and investors will not likely be endangered by the granting of the application for licensure.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

13. Pertinent to this case; Section 475.17(1)(a), Florida Statutes, provides:

    
    

    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. An applicant for an active broker's license or a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relation- ship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or his regis- tration 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 else-

    where which would have been grounds for revoking or suspending his license under this chapter had the applicant then been regis- tered, 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. While Kinsler's conduct may have constituted a basis for denial of her application for licensure in the past, proof of her subsequent good conduct and reputation demonstrated that the interest of the public and investors would not likely be endangered by the granting of her application for licensure at this time.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Petitioner, Delores W. Kinsler, for

licensure as a real estate salesman be GRANTED.

DONE and ENTERED this 21st day of August, 1987, in Tallahassee, Florida.

WILLIAM J. KENDRICK

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 21st day of August, 1987.

ENDNOTES

1/ The only other basis for the Commission's denial of Kinsler's application was her arrest in 1972 for breach of the public peace. Such arrest is not, however, competent proof of misconduct. Further, the proof established that such arrest occurred when Kinsler was 17 years of age, and that she committed no offense and was imprudently charged.

2/ Kinsler was apparently arrested on the charges in early 1980, and her first court appearance scheduled for May 1980. When she appeared in May 1980, pursuant to notice, her case was not on the docket, and she was advised by the state's attorney that he would see that the matter was straightened out.

Kinsler left with the impression that she would be noticed for a new hearing date, but never received such notice. Subsequently, she was arrested for

failure to appear. Such arrest is not, however, competent proof of misconduct, nor was her failure to appear shown to reflect adversely on her eligibility for licensure.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2223

Respondent's proposed findings of fact are addressed as follows: 1-2. Addressed in paragraph 1.

1. Addressed in paragraph 5.

2. Addressed in paragraphs 2-4. 5-6. Addressed in footnote 2.

7-8. Addressed in paragraph 6.

9-10. Addressed in paragraphs 7-8.

11. Addressed in paragraph 9.

COPIES FURNISHED:

Delores W. Kinsler

3400 Northwest 50th Avenue Apartment A-201

Lauderdale Lakes, Florida 33319

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

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

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32302

Docket for Case No: 87-002223

Orders for Case No: 87-002223