STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELIA H. DOLAN, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2127

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

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer, in Pensacola, Florida.

The appearances were as follows:

APPEARANCES

For Petitioner: Delia H. Dolan, pro se

2635 Belle Christiane Circle Pensacola, Florida 32503-5860

For Respondent: Manuel E. Oliver, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner should be accepted for licensure as a real estate salesman or whether that application for licensure should be denied on account of her past criminal record.

PRELIMINARY STATEMENT

This cause arose upon the filing by Petitioner, Delia H. Dolan, of an application for licensure as a real estate salesman. In that application the Petitioner answered question 6 by candidly admitting her arrest record and enclosing copies of it. That record reflected charges for DUI as well as multiple charges involving issuance of worthless checks and one count of grand theft. The Respondent agency duly notified her that it was denying her application for licensure, but advised her of her right to a Chapter 120 proceeding, which she elected to pursue, hence this hearing.

The cause came on for formal hearing, as noticed, at which the Petitioner testified on her on behalf and presented the testimony of one witness, Rusty

Coleman, a friend of the Petitioner. The Respondent presented Respondent's Composite Exhibit 1, which was admitted into evidence, and cross-examined the Petitioner's witnesses.

At the conclusion of the proceeding, the Respondent requested that the proceeding be transcribed and the parties elected to file proposed findings of fact and conclusions of law in the form of proposed recommended orders. The Petitioner timely filed proposed recommended order and the Respondent submitted her post hearing argument in the form of a letter. All proposed findings of fact submitted have been treated in this Recommended Order and once again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. On or about January 19, 1989, the Petitioner filed her application for licensure as a real estate salesman. The Respondent is an agency of the State of Florida charged with regulating the practice of licensed real estate salespersons and with regulating and controlling entry into that profession in accordance with the provisions of Chapter 475, Florida Statutes, and related rules.

   
   

2. The Petitioner answered question 6 on that application, the question inquiring as to her criminal history, by enclosing a copy of her arrest record and candidly admitting that she had been subjected to criminal prosecution in the past. That arrest record reflected charges of driving under the influence (DUI) to which she plead guilty and was placed on probation for a term of six months in each of two cases. The record also reflected 22 incidents of issuing worthless checks. She was prosecuted for these with the result that adjudication was withheld and the Petitioner was ordered to make restitution and to pay court costs. The criminal record further discloses that Petitioner was adjudicated guilty of grand theft in 1985 involving a retail store, apparently Sears, in Pensacola, for which she was adjudicated guilty and placed under community control for one year, ordered to make restitution and to perform six weeks of community service followed by one year of probation. The denial was only based upon the worthless check charges and the 1983 DUI conviction as well as a conviction in Texas occurring in 1981, when the Petitioner was 17 years old.

   
   

3. The Petitioner candidly admitted this criminal histor both on her application form and in her testimony at hearing. The Texas charge was not indicated on her application form because the Petitioner had been told by the prosecutor in Texas that the result of her offense would not be of record for purposes of later employment. That charge involved alleged grand theft which was reduced by the prosecution to a charge of disorderly conduct for which she was adjudicated guilty and required to pay a fine and court costs. The factual circumstance in the Texas charge involved the theft of a tube of lipstick and a bottle of nail polish. The Petitioner testified that the prosecutor in San Antonio had told the Petitioner's mother that it was a juvenile offense which would have no effect on her record.

   
   

4. With regard to the bad check charges, full restitution was made to all the vendors involved before the matter went before the court for adjudication. Although the criminal records reflect various arrests through 1985 and in 1986 on the worthless check charges, in fact the Petitioner established that the checks were all written in a very short period in the summer of 1985, but were prosecuted at different times, hence the different arrests. The Petitioner is genuinely remorseful about those charges and the related conduct and established

   that, by way of mitigation, they occurred at a time when she was only 21 years old, was married, but was having marital discord with her then husband, who exerted a great deal of influence in inducing her to issue the worthless checks. They have since become divorced and she is making an effort to better herself and engage in a productive life and career.

   
   

5. She freely acknowledges that at the time of the San Antonio, Texas, disorderly conduct conviction she was 17 years old and at the time of the worthless check and grand theft convictions in Florida she was only approximately 21 years of age, was quite immature and having significant personal problems which she has since overcome. She is genuinely sorry for engaging in such conduct and has consistently attempted to improve her life ever since. She has held a number of jobs as waitress and cashier for local restaurants in the Pensacola area and the Navy Club at the Pensacola Naval base. This includes the handling of large sums of money or her employers for which she has an unblemished record, accounting for all monies entrusted to her in an honest, reliable way. This testimony to this effect is borne out by various letters of recommendation which the Respondent stipulated into evidence and in which former employers and friends all uniformly attest to her good reputation and character, all of whom knew of her past criminal history. They unhesitatingly describe her reputation and character as good. Her employers so attesting to her reputation for honesty and good morals attest to the fact that she worked in a capacity as waitress and cashier and successfully and honestly handle their funds. In particular, as a waitress at the Pensacola "Navy Club," she was placed in charge of the bingo concession or activity and served as the cashier for thousands of dollars collected in the course of such activities.

   She handled and accounted for these large sums of money in an honest, reliable and accurate fashion to the satisfaction of her employer.

   
   

6. The Petitioner's one witness aside from herself was Rusty Coleman. He has known the Petitioner for at least three years and they are best friends. He was aware of her past criminal problems because she has told him about them herself. He finds her trustworthy and an honest, decent person who is seeking to better herself and become a reliable, productive citizen and member of society, as evidenced by her pursuing her higher education since the criminal episodes of record.

   
   

7. It is noteworthy that although 22 incidents of prosecution for worthless checks appear at first to be a significant level of such miscreant conduct, that all the checks were issued within a short period of time in 1985 when she was under considerable stress due to her unfortunate and successful marriage situation, and related financial difficulties, and the same consideration applies to the issue of the grand theft conviction and the DUI convictions in 1983. Under ordinary circumstances this aggregation of criminal convictions and conduct would appear sufficient to preclude an applicant from licensure approval only four years after the last incident of such conduct, as was reflected in her criminal record. It is noteworthy however, that, in addition to the Petitioner's own credible, candid testimony concerning her genuine change in attitude and attempt to live an honest, productive life, that none of this type of conduct was repeated after the time when she ended her unsuccessful marriage and the related stress it caused in both an emotional and financial sense. She has honestly pursued gainful employment ever since, in positions of trust, handling large sums of money and further has embarked on a higher education career as well as, at the same time, successfully completing and passing her real estate instruction course in an effort to prepare herself for a productive, honorable profession.

8. Under these circumstances, established by the Petitioner, her attending witness, and the corroborative statements admitted in evidence, although only four years have elapsed; it is found that in her particular situation that is sufficient time, coupled with the other evidence of her rehabilitation, to justify admitting her to licensure if she should pass the state examination involved. This is particularly true given that the Respondent has sufficient regulatory authority to oversee her entry into and practice of the profession so that it can ensure that the public is protected through its authority to impose accounting and reporting requirements on all funds and transactions the Petitioner might engage in as a realtor as conditions upon her entry into the profession. Under the peculiar circumstances of this case it is thus fund that the Petitioner has established her rehabilitation and resultant qualification for licensure.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. An applicant for professional license such as Petitioner, has the burden of establishing by a preponderance of the evidence that she meets all the requirements of law for such licensure. The pertinent statutory requirements applicable in this proceeding include the following:

    
    

11. Subsection 475.17, Florida Statutes, provides inter alia that:

    
    

    An applicant for licensure who is natural person must be ... honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing and must be competent and qualified

    to make real state transactions and conduct negotiations there for with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license ... or

    his registration or license to practice or conduct any regulated profession, business or vocation has been revoked or suspended, by this or any other state ... because of any conduct or practices which would have warranted a like result under this chapter, or 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 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.

12. Subsection 475.25, Florida Statutes, provides inter alia that:

    
    

    1. The Commission may deny an application for licensure ... if it finds that the applicant:

       (f) has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction, which crime directly relates to the activities of a licensed broker or salesman or involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facia evidence of such guilt ...

       
       

13. The opinion in State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607,

    146 So. 660, 661 (1933) reveals a definition by the Supreme Court of Florida of the concept of moral turpitude. The Court stated:

    
    

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. (citations omitted)

    
    

    It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent, as when unintentionally committed through error or judgment when wrong was not contemplated. In a like vein the court in Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DC 1981), found that moral turpitude involves duties owed by man to society, as well as acts "contrary to justice, honesty, principle, or good morals."

    
    

14. The offenses admitted by the Petitioner as having had been committed by her, including driving under the influence, issuance of worthless checks and grand theft are offenses which would have warranted the suspension or revocation of her license had she been licensed at the time the acts were committed under the above-cited provisions of Chapter 475, Florida Statutes. It thus falls to the Petitioner to establish by preponderant evidence that she has overcome the taint of these episodes of miscreant behavior by showing evidence of subsequent good conduct, reputation and rehabilitation.

    
    

15. The evidence adduced by the Petitioner, her corroborating witness and the corroborating written statements admitted into evidence by agreement, uniformly attest to her good reputation for honesty and fair dealing, particularly with other persons' money, since the last occurrence of aberrant conduct in approximately 1985. The Petitioner's evidence has not been refuted. She candidly admitted the past incidents of wrongful conduct and her related convictions. The fact that she did not disclose the San Antonio, Texas, conviction for disorderly conduct, is not concluded to be the result of an effort by her to conceal that conduct given the fact that she reported every other instance of involvement with the criminal justice system. She merely

    thought, based upon advice of the prosecuting attorney involved, that it was a juvenile justice matter which did not reflect adversely on her record.

    
    

16. The Petitioner has, since the time of the last conviction, consistently displayed an attitude showing a desire to improve her life and obtain both an academic and professional education which will enable her to become a reliable, productive citizen and member of an honored profession. She has been encouraged in this by the parents of Mr. Coleman, her close friend and corroborating witness, who are in the real estate profession themselves.

    
    

17. Having observed the candor and demeanor of these witnesses and attendant written statements on behalf of Petitioner, the Hearing Officer is convinced that the testimony and evidence adduced by the Petitioner is credible and worthy of belief and consequently, that the Petitioner has demonstrated sufficient rehabilitation by lapse of time, subsequent good conduct and reputation for honesty, trustworthiness and fair dealing, to justify the Respondent giving her an opportunity to become licensed as a member of the real estate sales profession. If she is given such a opportunity it is quite likely that her efforts to establish herself as an honest, trustworthy citizen and member of society, both personally and professionally, will be substantially strengthened and encouraged. She has established by preponderant credible testimony and evidence that she should be accorded that opportunity. It is therefore concluded that the Petitioner has established sufficient personal requirements and qualifications so as to justify allowing her to sit for the pertinent real estate licensure examination and, upon successful completion of that examination, being licensed in the state of Florida.

RECOMMENDATION

Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the pleadings and arguments of the parties, and the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED:

That Petitioner's application for licensure as a real estate salesman be granted.

DONE and ENTERED this 30th day of November, 1989, in Tallahassee, Florida.

P. MICHAEL RUFF 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 30th day of November, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2127

Respondent's Proposed Findings of Fact

1. Accepted.

2. Accepted except that the criminal record in evidence shows that only 22 charges of issuing worthless checks were the subject of criminal proceedings.

3. Accepted.

4. Accepted.

5. Accepted in a general context, but subordinate to the Hearing Officer's finding of fact on this subject matter.

6. Accepted.

COPIES FURNISHED:

Delia H. Dolan

2635 Belle Christiane Circle Pensacola, Florida 32503-5860

Manuel E. Oliver, Esquire Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32802

Darlene F. Keller, Director Department of Professional Regulation

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

Kenneth E. Easley, Esquire Department of Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

DELIA H. DOLAN,

Petitioner,

vs. DOAH CASE NO. 89-2127

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Respondent.

/

FINAL ORDER

On January 17, 1990, the Florida Real Estate Commission heard this case to issue a Final Order. Hearing Officer P. Michael Ruff of the Division of Administrative Hearings presided over a formal hearing on August 10, 1989. On November 30, 1989, he issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

The Respondent filed its Exceptions to the Recommended Order. A copy of the Respondents Exceptions is attached hereto as Exhibit B and made a part hereof.

After hearing argument of counsel and being otherwise fully advised in the premises, and after a complete review of the record, the Florida Real Estate Commission finds:

1. That the Respondents Exceptions to the Hearing Officers Finding of Fact No. 2, last paragraph; No. 3, last two sentences; No. 4, as to that portion relating to the circumstances surrounding the issuance of worthless checks by the Petitioner; No. 5, as to that portion of said Finding relating to the holding by the Petitioner of "a number of jobs as waitress or cashier...."; No. 7, relating to the "considerable stress" under which the Petitioner found herself and the "related financial difficulties," explaining the Petitioners issuance of worthless checks, the "grand theft and the DUI convictions in 1983"; are well taken and are adopted in their entirety by the Commission.

   
   

2. That the Hearing Officers Findings of Fact, as identified in the previous paragraph, are rejected as not being supported by competent, substantial evidence in the record and, more specifically, for the reasons set forth in the Respondent's Exceptions, Paragraphs 2, 3, 4, 5 and 6, which the Commission has accepted and adopted as its own.

   
   

3. The Hearing Officers Conclusions of Law in Paragraphs 8 and 9 of his Recommended Order are rejected as having no evidentiary support in the record. Also, they do not reflect that sufficient time has elapsed since the offenses were committed, and the penalties were imposed, to show complete rehabilitation of the Petitioner, or good conduct and reputation afterwards; and the Commission accepts and adopts the Respondents Exceptions contained in Paragraphs 7 and 8, to those Conclusions of Law of the Hearing Officer.

   
   

4. The Hearing Officers Findings of Fact and Conclusions of Law which have not been rejected are accepted and adopted by the Commission.

Therefore, for the reasons cited above, the Commission ORDERS:

1. That the Recommended Order be, and the same is hereby, rejected.

2. That the application for licensure of Petitioner Delia H. Dolan be, and the same is hereby, denied.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 17th day of January, 1990 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mall to: Delia H. Dolan, 2635 Belle Christiane Circle, Pensacola, Fl 32503-5860; to Hearing Officer P. Michael Ruff, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, Fl 32399-1550; and to Manuel E. Oliver, Assistant Attorney General, Suite 212, 400 West Robinson, Orlando, Fl 32801, this 26th day of January, 1990.

Director

Docket for Case No: 89-002127

Orders for Case No: 89-002127