STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH ANTHONY TUMBIOLO, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1233

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

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in St. Petersburg, Florida, on May 5, 1988, before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether the Petitioner should be permitted to take the Florida Real Estate Salesman's Examination or be denied the opportunity because of the criminal conviction on his record.

APPEARANCES

For Petitioner: Joseph Anthony Tumbiolo, pro se

6811 - 18th Avenue Drive West Bradenton, Florida 34209

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General

Suite 212, 400 West Robinson Street

Orlando, Florida 32801 BACKGROUND INFORMATION

On January 28, 1988, the counsel for the Florida Real Estate Commission, by letter, advised the Petitioner herein, Joseph A. Tumbiolo, that the Commission had denied his application for licensure as a real estate salesman in Florida due to his convictions in 1986 for two incidents of battery and one of false imprisonment. Petitioner thereafter requested a reconsideration of the denial and was present at the Commission meeting where the reconsideration took place. When the Commission again denied his application upon reconsideration, Petitioner requested a formal hearing. The matter was referred to the undersigned who, on April 8, 1988, set the matter for hearing.

At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibits 1-4. Respondent introduced Respondent's Composite Exhibits A-D, but presented no testimony.

A transcript of the proceedings was furnished and Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On September 30, 1987, the Petitioner herein, Joseph A. Tumbiolo, submitted an Application For Licensure as a Real Estate Salesman, to the Respondent, Florida Real Estate Commission which was received on October 2, 1987.

   
   

2. In response to question 6 on the application, Petitioner indicated he had pleaded guilty to and been found guilty of two separate misdemeanor batteries in 1986, and that adjudication of guilt had been withheld on a charge of false imprisonment the same year.

   
   

3. Based on this answer and Petitioner's explanation thereof, the Commission denied his application for licensure on the basis that due to his convictions, he did not meet the requirement of Section 475.17(1), Florida Statutes. This section calls for the applicant to be "honest, truthful, trustworthy, and of good character, and ... [with] a good reputation for fair dealing."

   
   

4. Records of the County Court of Pinellas County, Florida, reflect that on January 22, 1987, Petitioner pleaded guilty to two separate charges of battery (one against Charles J. Merteno on March 26, 1986, and one against Edwin

   D. Maxwell on April 13, 1986.) In both cases he was placed on probation for six months on the condition that he pay a $300.00 fine, do twenty-five hours of public service, refrain from the consumption of alcohol, and continue psychological counseling.

   
   

5. Court records of the Circuit Court for the Sixth Judicial Circuit of Florida, in and for Pinellas County reflect that on November 17, 1986, Petitioner entered a plea of nolo contendere to a charge of false imprisonment of two women. Adjudication of guilt was withheld and Petitioner was placed on probation for 18 months on conditions which included, inter alia, that he continue counseling.

   
   

6. Petitioner explained the circumstances of his offenses, indicating that the first two arose out of traffic incidents. The false imprisonment charge was filed when he called the police to eject two women from his video store when they refused to leave upon his request when he wanted to close up. He claims that all offenses came about due to his physical and mental state at the time which was affected by the pressure of his business. Business was bad, his landlord was giving him problems, he was working 60 to 70 hours per week, and he developed, he contends, a chemical imbalance in his system which resulted in his experiencing a manic episode. When the stress of the traffic incidents and the other incident with the ladies was applied, each created an overload and he lost control. None of the offenses was major. In no case was anyone injured. In the case of Mr. Maxwell, the victim did not press charges.

   
   

7. Subsequent to these incidents and before the hearings took place, on his own volition, Petitioner sought medical help and psychological counseling for his physical problem. Both have helped him and he feels much better. He has been living with his parents in Bradenton, away from the source of his problems, and is doing well.

   
   

8. Mr. Tumbiolo's probation officer indicates Petitioner has been diligent in trying to comply with all conditions of his probation and on December 10, 1987, petitioned the court to grant an early termination of probation. The

   court did not grant the request. Petitioner's probation counselor from the Salvation Army confirms that he has fully complied with the conditions of his probation. Family, friends and neighbors consider him to be reliable and trustworthy as well as compassionate and understanding of others. He is considered intelligent and pleasant and is recommended for employment.

   
   

9. Mr. Tumbiolo is licensed as an insurance salesman in both New York and New Jersey and has worked in sales positions dealing with the public without problems for approximately ten years. He believes the counseling which he has undergone was very helpful to him and the correction of the chemical imbalance he formerly experienced has enabled him to now cope with stress in an appropriate manner. He has an offer to work in real estate with a family friend if he can get his record cleared.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. (Section 120.57, Florida Statutes.

    
    

11. Under the provisions of Section 475.17(1), Florida Statutes, the Commission is given the power to review applications for licensure and deny them if it finds the applicant is not:

    
    

    "... honest, truthful, trustworthy, and of good character..."

    
    

    or if the applicant does not:

    
    

    "... have a good reputation for fair dealing..."

    
    

12. Here, Petitioner has been, for the purposes of this action, found guilty of two separate incidents of battery and one of false imprisonment. The circumstances surrounding the commission of the offenses does not reveal they were of an aggravated nature and in each case, the court placed the Petitioner on probation which, the evidence shows, he has successfully carried out.

    
    

13. The offenses involved here do not reflect that Petitioner is not honest, truthful or trustworthy. To the contrary, the fact that he was forthright in admitting his difficulties in his application and in all dealings with the Commission thereafter tends to indicate he meets these criteria. His reputation for fair dealing is not in question, but in any case, those who know him and who spoke for him by letters of recommendation consider him to be fair, compassionate, and reliable.

    
    

14. What is in issue, however, is whether Petitioner's misconduct constitutes bad character. Even considering the circumstances leading up to the incidents in question, and which may serve as mitigation of their severity, they, nonetheless, are indicative of a flaw in character, and would justify denial of licensure.

    
    

15. However, even when licensure technically may be denied, an applicant may still be considered eligible for licensure if he can establish adequate and sufficient rehabilitation, and, because of lapse of time and subsequent good conduct and reputation, it appears to the commission that the interest of the

    public and investors will not likely be endangered by the granting of registration.

    
    

16. In the instant case, insufficient time has passed from the date of the court action to clearly establish rehabilitation. The public must be protected against misconduct by professionals who cannot handle stress. Notwithstanding Petitioner's avowals that he has conquered his psychological problems, there is no professional evidence to that effect and such should be shown before Petitioner is given the opportunity to interact in a professional capacity with the public.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Petitioner, Joseph A. Tumbiolo, be denied licensure as a real estate salesman in Florida.

Recommended in Tallahassee, Florida, this 10th day of June, 1988.

ARNOLD H. POLLOCK

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 10th day of June, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1233

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner NONE

For the Respondent

1 - 4. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

COPIES FURNISHED:

Joseph Anthony Tumbiolo

6811 - 18th Avenue Drive West Bradenton, Florida 34209

Manuel E. Oliver, Esquire DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801

Darlene F. Keller

Acting Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801

Docket for Case No: 88-001233

Orders for Case No: 88-001233