STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN K. WHITAKER, III, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0613

) 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 May 18, 1988, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: John K. Whitaker, III, pro se

132 Club Drive

Palm Beach Gardens, Florida

For Respondent: Lawrence S. Gendzier, Esquire

400 West Robinson Street, Suite 212 Orlando, Florida 32801

BACKGROUND

This matter arose on December 2, 1987 when respondent, Department of Professional Regulation, Division of Real Estate, advised petitioner, John K. Whitaker, by letter that his application for licensure as a real estate salesman had been denied because of petitioner's criminal record. By letter dated January 19, 1988 petitioner requested a hearing to contest this action. The agency then formalized its prior action by issuing proposed agency action on February 4, 1988 and concurrently forwarding the matter to the Division of Administrative Hearings. By notice of hearing dated March 27, 1988, a final hearing was scheduled for April 27, 1898 in West Palm Beach, Florida. At petitioner's request the final hearing was rescheduled to May 18, 1988 at the same location. On April 19, 1988 the case was transferred from Hearing Officer

1. Matthew Stevenson to the undersigned.

   
   

   At final hearing, petitioner testified on his own behalf and presented the testimony of his mother, Jill Whitaker, and two family friends, Leo A. Koski and Charles Carvin. He also offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent offered respondent's exhibits 1-4. All exhibits were received in evidence.

   The transcript of hearing was filed on June 2, 1988. Respondent filed proposed findings of fact and conclusions of law on June 6, 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 dated September 10, 1987, petitioner, John K. Whitaker, III, sought licensure as a real estate salesman by examination with respondent, Department of Professional Regulation, Division of Real Estate (Division). The application was received by the Division on September 14, 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 gave the following response:

      
      

      Yes. DUI and DWI 1981 and 1982.

      
      

   3. Upon further investigation by the Division, it learned that Whitaker had been arrested for a DUI in 1982 and that no arrest had occurred in 1981. However, it also learned that Whitaker had been arrested for the following incidents:

      
      

      March 17, 1984 - Arrest for resisting police officer

      with violence.

      April 17, 1984 - Arrest for forgery - possession of

      forged or altered driver's license August 31, 1984 - Burglary of a dwelling; adjudication

      withheld.

      August 31, 1984 - Grand larceny; adjudication withheld. August 31, 1984 - Arson; adjudication withheld.

      
      

      Armed with this new information, respondent advised petitioner by letter dated December 2, 1987 that his application had been denied. This decision was later reaffirmed by letter dated February 4, 1988 and cited respondent's "criminal record" as the basis for the agency's denial. That prompted this proceeding.

      
      

   4. Petitioner, who is now twenty-nine years old, is a December, 1982 graduate of Florida State University with a degree in economics. After graduation, he worked eight months as a stockbroker for Alan Bush Brokerage Company in West Palm Beach, Florida.

      
      

   5. In 1983 petitioner began receiving medical treatment for what he thought was depression. As a part of the treatment, he took an antidepressant drug. He later learned he had a manic-depressive condition, a more serious mental illness, and the antidepressant medication was actually aggravating this condition. Before his real illness was discovered, Whitaker experienced manic episodes which were manifested by grandiose ideas, slurred speech and extremely poor judgment. As a result, Whitaker was arrested in 1984 for the series of incidents enumerated in finding of fact 3. The first two charges were dismissed

      while adjudication of guilt was withheld as to the remaining three charges. For those latter charges, Whitaker was placed on five years' probation, or to and including August, 1989. Whitaker stated he did not intend to lie about these matters and did not list the 1984 arrests on his application because he thought that if a charge was dropped, or adjudication of guilt withheld, he did not have to disclose the matter.

      
      

   6. Since having his illness properly diagnosed in 1984, Whitaker has taken medication (lithium) to prevent the recurrence of the symptoms and sees a physician at least once a month. He must remain on medication for the rest of his life in order to control the illness. With the exception of one flare-up about a year ago, his condition has stabilized.

      
      

   7. After his arrests in 1984, Whitaker was hospitalized for a period of time and then moved into a halfway house. He now lives in his own apartment. He has held several jobs, including a food service job in a West Palm Beach hospital and a timeshare unit salesman for his uncle in California. Presently, he is employed in a public relations capacity for a consumer club in West Palm Beach. He eventually wants to enter the real estate business, and for this

      reason, desires a license. Because his mother is a broker-realtor in Palm Beach Gardens, he expects no difficulty in obtaining a real estate position.

      
      

   8. Petitioner presented the testimony of his mother, a retired business executive and a family friend who is also a real estate salesman. The mother described the nature of petitioner's illness while the retired executive recalled petitioner as having "industrious," self-motivating" and "honest" characteristics and being a terrific salesman. The family friend described petitioner's present conduct to be normal now that he had controlled his illness. Finally, a number of letters were offered by various local businessmen, including one from a professional golfer and businessman (Jack Nicklaus), a physician, a stockbroker and a financial planner. However, all letters predate petitioner's arrests and therefore are irrelevant to the issue in this proceeding.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   10. Subsection 475.17(1)(a), Florida Statutes (1987), is controlling 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. (Emphasis added)

       
       

       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, 522 So.2d 1056 (Fla.

       5th DCA 1988).

       
       

   11. In the case at bar, Whitaker was guilty of conduct "which would have been grounds for revoking or suspending his license . . . had (he) then been registered." To show he is now qualified for licensure, Whitaker presented evidence of his medical condition which contributed to his arrests. There was other testimony that he now appeared to be "normal," and that he had previously demonstrated characteristics of being honest, industrious and self-motivating. However, this does not establish the requisite "lapse of time and subsequent good conduct and reputation" required by law. Antel, supra. The application should accordingly be denied. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of John K. Whitaker for licensure as a

real estate salesman by examination be DENIED.

DONE AND ORDERED this 13th day of June, 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 13th day of June 1988.

ENDNOTE

1/ Petitioner's prior criminal conduct is not a permanent bar to licensure. He may reapply and be licensed if the statutory criteria are satisfied.

APPENDIX

Petitioner:

1. Covered in finding of fact 1.

2. Covered in finding of fact 3.

3. Covered in finding of fact 2.

4. Covered in finding of fact 2.

5. Covered in findings of fact 3 and 5.

6. Covered in finding of fact 3.

7. Covered in finding of fact 3.

8. Covered in finding of fact 3.

COPIES FURNISHED:

JOHN K. WHITAKER, III

132 CLUB DRIVE

PALM BEACH GARDENS, FLORIDA

LAWRENCE S. GENDZIER, ESQUIRE

400 WEST ROBINSON STREET SUITE 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: 88-000613

Orders for Case No: 88-000613