STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL T. MYERS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3112

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

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on November 7, 1989. Nobody appeared on behalf of petitioner.

APPEARANCES

For Respondent: Manuel E. Oliver, Esquire

Department of Legal Affairs

400 West Robinson, Suite 212 Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether respondent should grant petitioner's application for licensure as a real estate salesman or deny the same for the reasons set out in respondent's letter to petitioner dated June 7, 1989?

PRELIMINARY STATEMENT

After petitioner made application for a real estate salesman's license, respondent's counsel wrote him on June 7, 1989, advising him that the "Commission denied your application for licensure ... based on your answer to Question #7 of the licensing application and/or your criminal record according to the appropriate law enforcement agency."

In response, petitioner made timely request for a formal administrative hearing. In accordance with Section 120.57(1)(b) 3., Florida Statutes (1987), respondent transmitted petitioner's request to the Division of Administrative Hearings. Accordingly, "the Division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1987).

FINDINGS OF FACT

Respondent introduced the only evidence offered at hearing, a copy of the application petitioner filed on March 7, 1989, including his answer to Question No. 7 on the application which consisted of several pages of documentation of an extensive criminal record. A partial list includes:

INTOX

DISORDERLY INTOX 06/12/75 REC. IN CO. CLERKS OFFICE DISORDERLY INTOX 05/17/75 DISCH.

PUBLIC PROFANITY 05/17/75 DISCH.

MAKING THREATS 05/17/75 SENT 30 DAYS NPT VIOLATION OF FINANCIAL 05/17/75 REC. IN CO. CLERKS OFFICE

REST. LAW

DRUNK

DISORDERLY CONDUCT 11/13/71 SENT 60 DAYS DRUNK

DISORDERLY CONDUCT 11/10/71 SENT 60 DAYS S/S DRUNK

Respondent's Exhibit No. 1. Other skirmishes with the law date to 1950 and have occurred as recently as 1984. Without evidence of rehabilitation since these problems with the criminal law, there is no basis for any finding other than the fact of petitioner's admitted criminal violations.

CONCLUSIONS OF LAW

The courts view it "as fundamental that an applicant for license or permit carries `the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage,

347 So.2d 1102 (Fla. 1st DCA 1977)(lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

After respondent apprised petitioner of the basis for its intended denial of his application for a license as a real estate salesman, it was incumbent upon petitioner to demonstrate, if he could, entitlement. But, at the time and place appointed for hearing, petitioner failed to appear, and no proof was adduced on his behalf.

RECOMMENDATION

It is accordingly, RECOMMENDED:

That respondent deny petitioner's application for a real estate salesman's license.

DONE and ENTERED this 7th day of December, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 7th day of December, 1989.

COPIES FURNISHED:

Paul T. Myers

4550 Crescent Street, Apt. 6

Jacksonville, Florida 32205

Manuel E. Oliver, Esquire Department of Legal Affairs

400 West Robinson, Suite 212 Orlando, Florida 32801

Docket for Case No: 89-003112

Orders for Case No: 89-003112