STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL ELDEN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0350

) 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 April 19, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Paul Elden, pro se

2049 South Ocean Drive Hallandale, Florida 33009

For Respondent: Manuel E. Oliver, Esquire

400 West Robinson Street, Room 212 Orlando, Florida 32801

BACKGROUND

This matter arose on an undisclosed date when respondent, Department of Professional Regulation, Division of Real Estate, advised petitioner, Paul Elden, that his application for licensure as a real estate salesman had been denied because of petitioner's criminal record. By letter dated January 6, 1988 petitioner requested a hearing to contest this action. The agency then formalized its prior action by issuing proposed agency action on January 21, 1988 and concurrently forwarding the matter to the Division of Administrative Hearings. By notice of hearing dated February 29, 1988, a final hearing was scheduled for April 21, 1988 in Miami, Florida. Upon the hearing officer's own motion, the final hearing was rescheduled to April 19, 1988 at the same location. On April 18, 1988 the case was transferred from Hearing Officer Don

1. Davis to the undersigned.

   
   

   At final hearing, petitioner testified on his own behalf. Respondent offered respondent's exhibits 1 and 2. Both exhibits were received into evidence.

   
   

   The transcript of hearing was filed on May 6, 1988. Respondent filed proposed findings of fact and conclusions of law on May 18, 1988. 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. By application originally executed on March 6, 1987, petitioner, Paul Elden, sought licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). The application reflects it was received by the Division on July 27, 1987.

      
      

   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:

      
      

      March 1986 for bookmaking was given two years probation.

      
      

   3. Upon further investigation by the Division, it learned that on March 17, 1986 in the Broward County Circuit Court, Elden was adjudicated guilty of two counts of bookmaking. In addition, adjudication of guilt was withheld for a third count of possession of gambling paraphernalia. All counts were felony charges. For these charges, Elden was placed on two years' probation. The probation was successfully completed in March, 1988. Based upon this information, but without citing relevant statutory grounds, the Division denied the application by letter dated January 21, 1988.

      
      

   4. Elden freely acknowledged his mishap with the law. It occurred in December, 1985 when a Hallandale undercover police officer entered his book store in Hallandale and asked Elden to place two bets on football games. Elden took the bets and placed them with a bookie who frequented the store for the purpose of taking bets from Elden and other customers. Elden was later charged with two felony counts of bookmaking and, after a notebook with names of betting customers was found on the premises, he was also charged with possession of gambling paraphernalia.

      
      

   5. Elden no longer owns the book store in which the gambling occurred. At the time of hearing, Elden was a sales representative for a local health maintenance organization. If his application is granted, he intends to place his license with a North Miami Beach broker who has offered him a position.

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

      
      

   7. Subsection 475.17(1)(a), Florida Statutes (1987), is controlling herein and provides in pertinent part as follows:

      (1)(a) An application for licensure . . . shall be . . . honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing . . . 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.

      
      

      Under the foregoing statute, an applicant for license 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 has the burden of proving 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); Antel v. Department of Professional Regulation, Florida Real Estate Commission, 13 FLW 879 (Fla. 5th DCA, April 7, 1988).

      
      

   8. In the case at bar, Elden presented nothing more than the facts of the crime itself and a brief employment history since pleading guilty to the crime in 1986. This is insufficient evidence to establish the requisite "lapse of time and subsequent good conduct and reputation" required by law. Antel, supra. The application should accordingly be denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Paul Elden for licensure as a real

estate salesman by examination be DENIED.

DONE AND ORDERED this 23rd day of May, 1988, in Tallahassee, Leon County, 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 23rd day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0350

Respondent:

1. Covered in findings of fact 1 and 2.

2. Covered in finding of fact 3.

3. Covered in finding of fact 4.

4. Rejected as unnecessary.

COPIES FURNISHED:

Mr. Paul Elden

2049 South Ocean Drive Hallandale, Florida 33009

Manuel E. Oliver, Esquire

400 West Robinson Street Room 212

Orlando, Florida 32801

Darlene F. Keller Executive Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

William O'Neil, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-000350

Orders for Case No: 88-000350