STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PETER THOMAS ROMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5432

) DEPARTMENT OF PROFESSIONAL ) REGULATION, DIVISION OF ) REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on January 25, 1989 in Clearwater, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Thomas A. Roman, Esquire

2340 Main Street, Suite L Dunedin, Florida 34698

For Respondent: Lawrence Gendzier, Esquire

400 West Robinson Street, Room 212 Orlando, Florida 32801

BACKGROUND

This matter began when Petitioner applied for licensure as a real estate salesman. Respondent denied the application and a formal administrative proceeding was requested by Petitioner. This hearing followed.

At hearing, Petitioner presented three evidentiary exhibits and testimony of four witnesses, including himself. Respondent presented three evidentiary exhibits and no witnesses. Proposed findings of fact submitted by the parties are addressed in the appendix to this recommended order.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner is Peter Thomas Roman. By application dated April 28, 1988, he sought licensure as a real estate salesman.

   
   

2. By letter dated October 24, 1988, counsel for Respondent informed Petitioner of Respondent's intent to deny licensure to Petitioner on the basis

   of Petitioner's 1985 arrest and subsequent plea in 1986 to a charge of grand theft, as well as Petitioner's suspension from membership in the Florida Bar.

   
   

3. Question number six of the application completed by Petitioner requires a "yes" or "no" answer to 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 responded to question number six by disclosing his entry of a plea of nolo contendere in the circuit court for Pinellas County, Florida, on December 29, 1986, to a charge of grand theft. Petitioner related that the incident alleged had taken place in November of 1979. Petitioner further stated that the sentencing court had withheld formal adjudication of guilt and had placed Petitioner on probation.

   
   

5. Petitioner, a licensed attorney at the time of the alleged incident, was disbarred from the practice of law by the Supreme Court of the State of Florida in an opinion issued on June 2, 1988. The Fla. Bar v. Peter T. Roman,

   526 So.2d 60 (Fla. 1988). Petitioner's disbarment was based on the same acts which resulted in the grand theft charge. In addition, the Supreme Court found that "[t]his case involves not only theft, but fraud on the court which strikes at the very heart of a lawyer's ethical responsibility." Fla. Bar v. Roman, p. 62.

   
   

6. The essential facts of the grand theft charges against Petitioner were that Petitioner falsified the name of an heir in an estate where Petitioner was serving as the personal representative. Funds paid from the estate to the falsified heir were converted by Petitioner to his own use. These matters occurred between January 1978 and January 1980. Petitioner was charged with grand theft in June of 1985. He pled no contest to that charge in 1986. Thereafter adjudication of guilt was withheld and he was sentenced to five years probation a $220 fine and nine months in the Pinellas County Jail.

   
   

7. Since the incident which is the basis for the grand theft charges filed against Petitioner, he has not been involved in any incidents or episodes of misconduct. Petitioner has been offered a job as a sales person with a local real estate firm if he is permitted to hold a real estate license. Testimony of character witnesses offered by Petitioner establishes their belief that his reputation in the community is good, despite the one criminal incident in his past, and that they believe neither the public or investors would be endangered by the granting of licensure to the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.

   
   

9. In accordance with Subsection 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. Moral turpitude has been defined as anything done contrary to justice, honesty, principle or good morals. It involves the idea of inherent baseness or depravity in the private social relations or duties owned by man to man, or by man to society. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933).

10. In view of the foregoing definition, grand theft is an offense involving moral turpitude.

    
    

11. Further, Subsection 475.17(1)(a), Florida Statutes, provides the application for licensure may be denied, in cases of this nature, on the basis of Petitioner's disbarment.

    
    

12. Petitioner bears the burden of proof with regard to establishment of his rehabilitation and qualifications for licensure. In this regard, it is important to recognize that although the acts upon which charges of grand theft against Petitioner are based occurred over nine years ago, Petitioner was not brought to justice until 1986. Further, the Florida Supreme Court ruling disbarring him from the practice of law is not yet a year old.

Based on the limited period of time that has elapsed since Petitioner's sentencing for the criminal offense, Petitioner has failed to establish his rehabilitation and qualification for licensure.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered denying Petitioner's application

for licensure.

DONE AND ENTERED this 15th day of February, 1989, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5432

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

RESPONDENT'S PROPOSED FINDINGS

1.-9. Adopted in substance.

1. Unnecessary to result.

2. Adopted in substance.

3. Unnecessary to result.

PETITIONER'S PROPOSED FINDINGS

1.-8. Adopted in substance.

1. Addressed in part, remainder unnecessary to result.

2. Addressed in part, remainder unnecessary.

3. Rejected as cumulative.

4. Addressed in part, remainder unnecessary to result.

COPIES FURNISHED:

Thomas A. Roman, Esquire 2340 Main Street, Suite L Dunedin, Florida 34698

Lawrence Gendzier, Esquire

400 West Robinson Street Room 212

Orlando, Florida 32801

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Darlene F. Keller, Division Director Real Estate Legal Services

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 88-005432

Orders for Case No: 88-005432