STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARTH ARIN MALLOY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5666

) 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 February 22, 1989, in Sarasota, Florida.

APPEARANCES

For Petitioner: Edwin N. Boyer, Esquire

2055 Wood Street, Suite 220

Sarasota, Florida 34237

For Respondent: Manuel E. Oliver, Esquire

Room 212, 400 West Robinson Street

Orlando, Florida 32801 BACKGROUND

By application filed on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. On November 9, 1988, respondent, Division of Real Estate, advised petitioner that his application had been denied based upon his criminal record. Thereafter, petitioner requested a formal hearing under Subsection 120.57(1), Florida Statutes (1987) to contest the agency's decision. The matter was referred by respondent to the Division of Administrative Hearings on November 9, 1988, with a request that a hearing officer be assigned to conduct a hearing. On December 13, 1988, the case was transferred from Hearing Officer K. N. Ayers to the undersigned.

By notice of hearing dated December 9, 1988, a final hearing was scheduled on February 14, 1989, in Sarasota, Florida. At petitioner's request, the matter was rescheduled to February 22, 1989, at the same location.

At final hearing, petitioner testified on his own behalf and presented the testimony of Shirley A. Orum and Laura Marie Sherry. He also offered petitioner's exhibits 1-4. All exhibits were received in evidence. Respondent offered respondent's exhibits 1 and 2. Both exhibits were received in evidence.

The transcript of hearing was filed on March 9, 1989. Proposed findings of fact and conclusions of law were filed by petitioner on March 20, 1989. None

were filed by respondent. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

The issue is whether petitioner's application for licensure as a real estate salesman should be granted.

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

FINDINGS OF FACT

1. By application filed with respondent, Division of Real Estate (Division), on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. In response to question six an the application, petitioner acknowledged that he had been arrested in August 1984 for possession of marijuana, a felony, and burglary and sexual misconduct, both misdemeanors, and ultimately pled guilty to the felony charge of possession of marijuana and the misdemeanor charge of sexual misconduct. After reviewing the application, and securing petitioner's record of arrests, respondent issued proposed agency action in the form of a letter on October 3, 1988, denying the request on the ground petitioner was not "honest, truthful, trustworthy, and of good character" and did not "have a good reputation for fair dealing." The denial prompted petitioner to request a formal hearing.

   
   

2. Malloy, who is twenty-eight years old, graduated from Spring Hill College in Mobile, Alabama in February 1983 with a degree in psychology. After graduation, he worked as a recreation director for a residential care facility for emotionally disturbed children in the Mobile area. In August 1984 he was arrested for possession of marijuana after police found marijuana plants growing in his backyard. The charge was a felony under Alabama law. A short time later, one of Malloy's neighbors lodged charges of sexual abuse against him for allegedly making improper advances on her thirteen year old son. A charge of second degree burglary, a felony, was added for Malloy allegedly unlawfully entering the house where the minor resided

   
   

3. Upon advice of his attorney, Malloy accepted a negotiated plea offered by the state and pled guilty to the felony charge of possession of marijuana and to a reduced misdemeanor charge of sexual misconduct, and the state agreed to dismiss the burglary charge. After the plea was accepted, Malloy was placed on probation for five years. Except for these offenses, petitioner has never been charged with or convicted of any other crimes.

   
   

4. Malloy accepted the above arrangement since he did not wish to go to trial and risk incarceration. He readily acknowledged the presence of marijuana plants in his back yard which he said were for his own consumption and that of some friends. However, he vigorously denied the sexual misconduct and related burglary charges and blamed them on the neighbor who he contended was mentally unstable and vindictive.

   
   

5. Since Malloy's plea, he has been on supervised probation which is scheduled to end on January 1, 1990. Under the terms of his probation, Malloy must check in once a month, report his activities to a supervisor and attend counseling sessions. He is currently in the process of requesting an early termination of probation.

   
   

6. Malloy left Alabama in early 1985 and worked briefly at a resort in Key West. In late 1985 he began employment with a satellite communications firm in

   St. Petersburg and was in charge of sales, credit and installations for three area stores. In that capacity, he handled the firm's money and was required to frequently deal with the public. After a brief stint as an assistant store manager with a Sarasota department store, Malloy worked two years as a teller for a Sarasota savings and loan institution where he handled large amounts of cash on a daily basis. It is noteworthy that the bank hired petitioner with the knowledge of his criminal background. Pending the outcome of this proceeding, Malloy is working as an office manager with a Sarasota air-conditioning firm.

   Malloy now wishes to enter the real estate profession and eventually specialize in appraising.

   
   

7. Malloy's honesty, trustworthiness and good reputation were attested to by the branch manager of the bank where Malloy was employed and the owner of the business where he now works. Malloy was described as being honest, reliable and trustworthy. Both had the utmost confidence in entrusting Malloy with handling moneys. Indeed, all positions held by Malloy since 1985 have involved unsupervised responsibilities, the handling of cash and dealings with the public. As such, he has established rehabilitation. There was no evidence to contradict these findings.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. As the applicant seeking a license, Malloy bears the burden of showing entitlement to licensure. Fla. Department of Transportation vs. J.W.C. Comany, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

   
   

10. According to the letter of denial, Malloy was disqualified for licensure on the ground he failed to comply with the provisions of Subsection 475.17(1), Florida Statutes (1987). That subsection provides in pertinent part as follows:

    
    

    (1)(a) An applicant for licensure ... shall be ... honest, truthful, trustworthy, and of good character and shall have a reputation for fair dealing... If the applicant has been guilty of conduct or practices which would have been grounds for revoking or suspending his license under this chapter had the applicant 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 this statute, two requirements arise. First, Malloy must demonstrate he has the attributes of honesty, truthfulness, trustworthiness, good character and a reputation for fair dealing. Secondly, because of his arrest and plea in the

    State of Alabama, he must show there has been a "lapse of time," "subsequent good conduct and reputation" or "other good reason" to warrant granting registration. In other words, the applicant has the burden of proving he has rehabilitated himself since the illicit conduct occurred, assuming such conduct would have been a ground for revoking or suspending his license had he then been registered. Aquino vs. Department of Professional Regulation, Board of Real Estate, 430 So.2d 598 (Fla. 4th DCA 1983) ; Antel vs. Deartment of Professional Regulation, Florida Real Estate Commission, 522 So.2d 1056 (Fla. 5th DCA 1988).

    
    

11. Petitioner contends first that, under the authority of Pearl vs. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981), the felony possession of marijuana does not constitute moral turpitude and therefore such a conviction would not have been a ground to revoke his license had he then been registered. Accepting this proposition as being correct, Malloy was still charged with, and pled guilty to, sexual misconduct, a Class A misdemeanor in Alabama. Under this offense, sexual misconduct with a minor occurred but the defendant had no sexual contact with the alleged victim. Since this conduct arguably may be described as being "contrary to justice, honesty, principle, or good morals," State ex rel. Tullidge vs. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933), the Division had the discretion to preliminarily deny the application until proof of rehabilitation was submitted.

    
    

12. The preponderance of evidence shows clearly, without contradiction, that there has been a sufficient lapse of time since Malloy's legal problems occurred, that Malloy has demonstrated subsequent good conduct and reputation, and that the public and investors will not likely be endangered by the granting of registration. Further, it was shown that Malloy possesses the attributes of honesty, trustworthiness, truthfulness and good character. Therefore, the application should be granted.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Garth Arin Malloy for licensure as a

real estate salesman be GRANTED.

DONE and ORDERED this 23rd day of March, 1989, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 March, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5666

Petitioner:

36. Rejected as being a conclusion of law. 37-38. Covered in finding of fact 7.

39. Rejected as unnecessary.

COPIES FURNISHED:

Edwin M. Boyer, Esquire 2055 Wood Street, Suite 220

Sarasota, Florida 34237

Manuel E. Oliver, Esquire

Room 212, 400 West Robinson Street

Orlando, Florida 32801

Darlene F. Keller Director

Division of Real Estate Post Office Box 1900 Orlando, Florida 32802

Kenneth E. Easley, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 88-005666

Orders for Case No: 88-005666