STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER R. MURPHY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4439

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on January 19, 1989, before Arnold H. Pollock, Hearing Officer. The issue for consideration was whether the Petitioner should be permitted to qualify for licensure as a real estate salesman in Florida.

APPEARANCES

For Petitioner: Ralph C. Stoddard, Esquire

1132 Lithia Pinecrest Road Brandon, Florida 33511

For Respondent: Lawrence S. Gendzier, Esquire

Assistant Attorney General

Suite 212, 400 West Robinson Street

Orlando, Florida 32801 BACKGROUND INFORMATION

By letter dated September 7, 1988, Lawrence S. Gendzier, Assistant Attorney General, advised the Petitioner that the Florida Real Estate Commission had denied his application for licensure as a real estate salesman because of his answer to Question 6 of the licensing application which reflected that on August 9, 1978, he had been arrested and convicted for trafficking in cocaine in Lima, Peru; and that on October 24, 1985, he had been arrested and convicted for conspiracy to possess and distribute cocaine in Jacksonville, Florida.

Respondent requested a formal hearing and the matter was thereafter referred to the Division of Administrative Hearings for appointment of a Hearing Officer.

By Notice dated September 28, 1988, the undersigned set the case for hearing on December 8, 1988, in Tampa, but based on Petitioner's Notion for Continuance dated November 8, 1988, the undersigned postponed the hearing until January 19, 1989 at which time it was held as scheduled.

At the hearing, Respondent presented Respondent's Composite Exhibit A, consisting of documentation relating to Petitioner's application. Petitioner testified in his own behalf and presented the testimony of Kent N. Brink, a real estate broker; Steven G. Burgess, Sales Manager for a real estate firm; and Sheryl Howard, a builder. He also introduced Petitioner's Exhibits 1 through 3.

No transcript was provided, however, both parties submitted Proposed Findings of fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, the Respondent, Florida Real Estate Commission, (Commission), was the state agency charged with the regulation of the profession of real estate in Florida and is the licensing agency for real estate salesmen and brokers.

   
   

2. On or about April 20, 1988, the Petitioner, Christopher R. Murphy, prepared and submitted, along with the appropriate fee, to the Department of Professional Regulation, Division of Real Estate, an application for licensure as a real estate salesman.

3. At paragraph 6 of the application form appears the question: Have you ever been convicted of a crime,

   found guilty, or entered a plea of guilty

   or nolo contendere (no contest), even if adjudication was withheld?

   
   

4. Petitioner answered, "Yes (2)" to this question and consistent with further instructions on the form, indicated:

   
   

   1. August 9, 1978, arrested Lima, Peru, Charged with Traficking [sic] in cocaine, sentenced to 24 months

   2. Oct. 4, 1985, arrested in Jacksonville Florida, Charged with conspiracy to

      possess & distribute, sentenced 42 mos.

      
      

5. At the hearing, Petitioner admitted that in 1978 he was arrested for trafficking in cocaine in Lima, Peru. He was in pretrial confinement for 27 months prior to his conviction, which, he claims, did not meet with the requirements of due process. The facts of the case were that he was in Peru with a friend who was in the cocaine business. It was his companion, not him, he claims, who had cocaine in his hotel room and because Petitioner was with him there, he, too, was charged. Petitioner admits that he knew his friend was in Peru to buy cocaine and that he went with him willingly, but claims that he was not a party to the purchase nor did he own or possess any of the cocaine.

   
   

6. He also admits that in 1985 he was convicted in Jacksonville, Florida of conspiracy to possess and distribute cocaine. He claims, however, that this conviction will be reconsidered by the court even though he admits to being guilty of the offense. There was, however, no evidence of any appeal of the conviction filed by Petitioner and his representation that his case will be reconsidered is based on his cooperation in an ongoing investigation about which he cannot speak. The fact remain that he has been convicted and the conviction still stands.

   
   

7. Mr. Murphy was born in 1938 in Boston. In later years, his father worked as a civil engineer on the Saturn 5 project for NASA and he has lived in Florida for 30 years. He is presently a student of accounting due to graduate with a degree in education. He wants his real estate license because he is interested in real estate and in mortgage brokerage and wants to establish a

   family business, the prime thrust of which will be mortgage brokerage. Nonetheless, he feels a real estate license would go hand in glove with this end.

   
   

8. Petitioner contends he disclosed everything in his application. As a result of the trial in Jacksonville, he was sentenced to three and a half years in prison. He was given credit for the 6 months pretrial confinement he spent in County Jail, served 18 months of the full term, and spent an additional 6 months in a halfway house. While in prison, he took college courses in real estate, finance, and management.

   
   

9. By Order dated November 28, 1988, the Comptroller of the State of Florida, incorporated a Stipulation between the Department of Banking and Finance and the Petitioner which had the effect of granting Petitioner's application for a probationary mortgage broker's license, and he is currently so licensed in Florida.

   
   

10. Mr. Murphy regrets his errors and claims he has left that part of his life behind him. He wants the license for which he has applied so that he can do something better with his life consistent with the plans mentioned previously.

    
    

11. Kent Brink, a real estate broker in Odessa, Florida, has known Petitioner for approximately five years from the time when Petitioner first bought a piece of property through him. Since that time, he has gotten to know Petitioner socially as well and has mutual friends and business associates with him. He is aware of Petitioner's reputation for honesty, truthfulness, trustworthiness, and his reputation for good character within the community and it is good in all respects. He is aware of Petitioner's convictions and what they are for, and in spite of that, trusts him and would hire him if he were licensed. He would have no problem trusting his own reputation and the welfare of his clients with the Petitioner.

    
    

12. Steven G. Burgess, the sales manager for Keystone Real Estate in Holiday, Florida, met the Petitioner about a year and a half ago and is aware of Petitioner's criminal record. Since their meeting, however, he has had numerous business dealings with the Petitioner and has found him to be reliable. He has had no problem trusting Petitioner and has found him to be totally honest. Petitioner's reputation for honesty, truthfulness, and good character in the community, as he knows it, is good.

    
    

13. Sheryl Howard, a builder in Brooksville, Florida, has known Petitioner for approximately one year, having met him through a real estate transaction Petitioner had with her father. Petitioner came to work for her and her father in the building business. He was hired to work with punch lists and to run errands and in that capacity, he had to be trusted. He was given a key to the office without problem, and always accomplished the job requested of him, going beyond that which was required. She is aware of Petitioner's criminal record because he made it known to her. Nonetheless, if he is licensed, she would be happy to have him work for her and would trust him with access to her escrow account and her funds.

    
    

14. Petitioner demonstrated exceptionally poor judgement as well as criminality in his involvement in the two offenses of which he was convicted. Even conceding that the lack of due process during his Peruvian conviction, he admitted he was there in the company of his friend who he knew was involved in an unlawful activity. Nonetheless, for the purpose of argument, disregarding

    that conviction, he also admits his involvement in and guilt of the cocaine offense in Jacksonville. There is no doubt that drug offenses are egregious and nefarious and his involvement therein indicates a complete disregard not only for the laws of this state and country, but for the welfare of his fellow citizens, the same group which would serve as potential clients were he to be licensed.

    
    

15. Nonetheless, it would appear from the evidence presented by Petitioner and unrebutted by Respondent that he has changed and has been rehabilitated.

    The evidence shows he has been tested in the community since his release from prison, and has passed the test. He has shown evidence of an attempt to better himself through education and employment and has satisfied those for and with whom he worked that he can be trusted. It is found, therefore, that he has been rehabilitated and no longer presents a threat or danger to the interests of the public and investors with whom he is likely to come into contact.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

17. Section 475.17(1)(a), Florida Statutes, provides in pertinent part:

    
    

    An applicant for licensure who is a natural person shall be ... honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing [I]f

    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.

    
    

18. Section 475.25(1), Florida Statutes, provides that licensure can be denied if the applicant has been convicted of certain criminal conduct. There is no question that Petitioner here, Mr. Murphy, has been guilty of two serious offenses involving the conspiracy to possess or the possession of cocaine. One conviction was in Florida and a previous conviction was in Peru. The most recent of the convictions, however, took place on October 4, 1985, in excess of three years ago. As a result of these convictions, it is clear that Mr. Murphy is guilty of conduct which would be grounds for suspension or revocation under Section 475.25(1). Therefore, under Section 475.17(1)(a), cited above, the issue then becomes whether Mr. Murphy is "honest, truthful, trustworthy, and of good character" and whether he has "a good reputation for fair dealing," and whether "because of 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 Murphy is granted a real estate license.

19. The burden of proof is on Mr. Murphy, J. W. C. Company, Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981). In determining whether Mr. Murphy carried his burden, some guidance can be found in Aquino v. Department of Professional Regulation, 430 So.2d 598 (Fla. 4th DCA 1983). In Aquino the court ordered that a real estate license be issued to an applicant who had violated SEC regulations by selling unregistered securities. This misconduct had occurred five years before and the court upheld a finding that five years is sufficient time for rehabilitation. In Aquino, as here, the uncontroverted testimony was that Aquino had a reputation for fair and honest dealings and that the interest of the public and investors was not endangered by granting the application. Finally, the court recognized there was no evidence of misconduct since the cited incident and all evidence pointed toward rehabilitation.

    
    

20. The present case is similar to Aquino. The first offense took place in excess of ten years ago and the second, more than three. The uncontroverted evidence is that since his release from prison, Mr. Murphy has had a good reputation for honesty, trustworthiness, truthfulness and fair dealing. Professionals in the field which Petitioner seeks to join have observed him over a period of time, have worked with him, have put him in positions of trust and responsibility, and have not had that trust abused. They are uniform in their description of him as an honest, trustworthy, truthful and fair dealing individual and there is no evidence that the public or investors would be endangered by his licensing. Instead, all evidence points toward rehabilitation.

    
    

21. It is, therefore, concluded that Mr. Murphy, though his judgement has been shown to be extraordinarily poor in the past, has, since his incarceration, shown himself to be honest, truthful, and trustworthy and sufficient time has elapsed to demonstrate that he has been rehabilitated. Since the Commission based its denial solely on the basis of disclosures in the application, and there is no evidence that any independent investigation into Petitioner's conduct during the interim has been conducted, having considered all the evidence, both of convictions and of rehabilitation, the balance swings in favor of rehabilitation and he, therefore, meets the criteria set forth in Section 475.17, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Christopher R. Murphy, be deemed eligible to sit for examination for licensure as a real estate salesman in Florida.

RECOMMENDED this 22nd day of February, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4439

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.

By the Petitioner:

1. & 2. Accepted and incorporated herein

3. & 4. Accepted as a reflection of the evidence

1. Accepted and incorporated herein

2. Accepted as a comment on the evidence

3. Accepted and incorporated herein

4. & 9. Accepted and incorporated herein By the Respondent:

1. - 4. Accepted and incorporated herein

COPIES FURNISHED:

Ralph C. Stoddard, Esquire

132 Lithia Pinecrest Road Brandon, Florida 33511

Lawrence S. Gendzier, Esquire Assistant Attorney General Suite 212

400 West Robinson Orlando, Florida 32801

Darlene F. Keller Executive Director

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

Docket for Case No: 88-004439

Orders for Case No: 88-004439