STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE D. PHILLIPS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4641

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings in Key West, Florida, on March 29, 1988. A transcript of the proceeding was filed and the Florida Real Estate Commission filed proposed findings of fact and conclusions of law.

Rulings on proposed findings of fact are made in the appendix to this Recommended Order.

Charlie D. Phillips, Pro se, Key West, Florida.

Lawrence Gendzier, Esquire Orlando, Florida, for Respondent.

ISSUE

The issue is whether Charlie Phillips is entitled to licensure as a real estate salesman.

FINDINGS OF FACT

1. Charlie D. Phillips applied for licensure as a real estate salesman on or about May 22, 1987.

   
   

2. That application was denied by the Florida Real Estate Commission on August 19, 1987, based upon Mr. Phillips' answer to question 6, which asked whether he had been convicted of a crime. Mr. Phillips had answered yes. He had attached to the application a letter indicating that he had been convicted of the felony of indecent exposure before a minor in Colorado in April 1983, when Mr. Phillips was 21 years old.

   
   

3. The incident involved had occurred approximately two years before his conviction. After the incident and before his conviction Mr. Phillips had engaged in counselling with a Colorado psychiatrist, Dr. Brent Steel for close to a year before the matter went to court. At the criminal hearing Mr. Phillips pled guilty, was placed on probation, and was not incarcerated for any period of time, apparently in part due to his successful participation in therapy with Dr. Steel. The Colorado court terminated the probation almost a year early. Mr. Phillips remained in counseling with Dr. Steel in Colorado for five years.

4. Since coming to Key West, Florida, Mr. Phillips has been counselled by Dr. Tanju T. Mishara, a clinical psychologist licensed in Florida. At first, Mr. Phillips had been counselled by a psychologist working under Mishara's supervision at the mental health care center in the Lower Keys, but after the psychologist's training was completed, Dr. Mishara continued seeing Mr. Phillips.

   
   

5. The Hearing Officer is persuaded by Dr. Mishara's testimony that Mr. Phillips has overcome the delinquent behavior which Mr. Phillips engaged in when he was young. Neither the behavior nor the urges that caused the behavior have occurred for a number of years now. Mr. Phillips has continued in therapy in Colorado and Florida beyond the period that he was required to as a result of the criminal proceeding, which Dr. Mishara regards as an important indication that Mr. Phillips resolved to take responsibility for his actions and to overcome the behavior which got him into trouble. Most people stop counseling as soon as the troublesome behavior stops without ever resolving the problem that led to the inappropriate behavior. Dr. Mishara has determined that it is no longer necessary for Mr. Phillips to remain in therapy.

   
   

6. Mr. Phillips now is well adjusted socially, has been involved in post- secondary education, has a responsible job, has earned the respect and trust of coworkers, has a serious relationship with a young woman of his age, and is unlikely to engage in further antisocial behavior which would jeopardize his standing in the community or the integrity of a profession in which he was involved. The Hearing Officer is satisfied that Mr. Phillips is now a competent and responsible citizen who has overcome his problem.

   
   

7. The Hearing Officer was especially impressed with the forthright manner in which Mr. Phillips disclosed his past difficulties, accepted responsibility for his actions, and detailed the efforts that he has made to overcome those past problems. In view of the both the very favorable impression which Mr. Phillips made at the hearing, and the testimony of Dr. Mishara in which she indicated she would have no reservation in recommending the approval of his application as a salesman, which is a position of trust, the Hearing Officer is persuaded of Mr. Phillips' rehabilitation.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

9. In this proceeding involving an application for licensure, the burden of proof is upon Mr. Phillips. Rule 28- 6.008(3), Florida Administrative Code. See also Florida Department of Transportation v. J. W. C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Under Section 475.25(1)(f), Florida Statutes, the Florida Real Estate Commission may deny an application for licensure if the applicant has been convicted or found guilty of a crime involving moral turpitude. The crime of which Mr. Phillips was convicted is one which involved moral turpitude.

   
   

10. 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 relationship of trust and confidence. 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 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.

    
    

11. Mr. Phillips was guilty of conduct which would have been grounds for suspension or revocation of a real estate license under Section 475.25(1), Florida Statutes. Under Section 475.17(1)(a), the issue is whether Mr. Phillips now is "honest, truthful, trustworthy, and of good character" and has "a good reputation for fair dealing" and whether "because of a lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient,... the interest of the public and investors will not likely be endangered" if Mr. Phillips is granted a real estate salesman's license. The prior conviction, in itself, would not "continue to forever exclude him from the ranks of an honorable profession." State ex. rel. Corbett v. Churchwell, 215 So.2d 302, 304 (Fla. 1968).

    
    

12. In evaluating this case, guidance can be found in Aquino v. Department of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983). There, the court ordered that a real estate license be issued to a person who had violated regulations of the Securities and Exchange Commission by selling unregistered securities. The conduct occurred five years before the application for licensure, and the court upheld a finding that five years is sufficient time for rehabilitation. The court also noted that there no was evidence of misconduct since the cited incident and all evidence pointed toward rehabilitation.

    
    

13. This case is similar to Aquino. The offense was more than five years ago. There is no indication of any improper conduct since the offense at issue. The evidence from Dr. Mishara, both in her oral testimony and in the letter

    admitted in evidence as exhibit 4 indicates that Mr. Phillips is entitled to licensure. See also transcript, pages 10 through 12. According to Dr. Mishara, Mr. Phillips is not at all likely to engage in antisocial behavior which would jeopardize either his standing in the community or the integrity of his profession. All evidence points towards rehabilitation.

    
    

14. Mr. Phillips is now honest, truthful, trustworthy, and of good character. Mr. Phillips' continued involvement in counselling substantially beyond the time when he was required to do so is a good indication that he has resolved to overcome his past problems, and the testimony of Dr. Mishara indicates that he has done so. Sufficient time has elapsed for rehabilitation, and during this time Mr. Phillips has engaged in good conduct, and has a good reputation. It is concluded that the interest of the public and investors will not be endangered by Mr. Phillips' licensure. Mr. Phillips should be licensed as a real estate salesman.

RECOMMENDATION

Based upon the foregoing it is RECOMMENDED that the Florida Real Commission enter a final order granting Charlie D. Phillips' application for licensure as a real estate salesman.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of May, 1988.

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1988.

APPENDIX

Rulings on the Real Estate Commission's proposed findings of fact.

1. Adopted in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered generally in findings of fact 4, 5, and 6.

5. Rejected because Dr. Mishara was familiar with Mr. Phillips' case because of her supervision of the psychologist who first worked with him, Dirk Lorensen (transcript page 16) and she began seeing him in the fall of 1986. She is also familiar with his records from his therapy in Colorado. (Transcript page 17)

6. Rejected as an insufficient characterization of Dr. Mishara's testimony.

7. Rejected because the issue here is rehabilitation, not whether there may have been other occasions of exposure prior to the one to which Mr. Phillips pled guilty.

COPIES FURNISHED:

CHARLIE D. PHILLIPS POST OFFICE BOX 607

KEY WEST, FLORIDA 33041

LAWRENCE S. GENDZIER, ESQUIRE ASSISTANT ATTORNEY GENERAL

DEPARTMENT OF PROFESSIONAL REGULATION SUITE 212, 400 WEST ROBINSON STREET

ORLANDO, FLORIDA 32801

DARLENE F. KELLER, ACTING DIRECTOR DIVISION OF REAL ESTATE

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

WILLIAM O'NEIL, ESQUIRE GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750

Docket for Case No: 87-004641

Orders for Case No: 87-004641