STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN CARL ENGLISH, )

)

Petitioner, )

)

vs. ) Case No. 89-4051

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing in the above-styled matter was held on October 4, 1989, in West Palm Beach, Florida, before Joyous D. Parrish, a Hearing Officer with the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For the Petitioner: John R. Howes

700 South Andrews Avenue, Suite 200 Fort Lauderdale, Florida 33316

For the Respondent: Manuel F. Oliver

Assistant Attorney General Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The central issue in this case is whether Petitioner's application to take the examination for real estate licensure should be approved.

PRELIMINARY STATEMENT

This case began on June 21, 1989, when the Florida Real Estate Commission (FREC) denied the Petitioner's application for licensure. FREC based the denial on answers provided by Petitioner on his application for licensure. Those answers disclosed Petitioner's past criminal record and his present parole status. The Petitioner contested the denial and requested a formal hearing to review that decision. The case was forwarded to the Division of Administrative Hearings for formal proceedings on July 27, 1989.

At the hearing, Petitioner testified in his own behalf and presented the testimony of the following witnesses: Linda Levine, manager of the Viscaya Title Company; Barbara Ann Heilman, a real estate licensee associated with Investment Equity Real Estate; and David T. Doyle, owner of an investment insurance firm.

FREC's exhibits numbered 1 and 2 were admitted by stipulation into evidence.

The transcript was filed with the Division of Administrative Hearings on October 27, 1989.

After the hearing, the Petitioner filed a proposed recommended order. On November 6, 1989, counsel for FREC filed a letter advising the undersigned that he would not file a proposed recommended order. Specific rulings on the proposed findings of fact submitted by the Petitioner are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. On December 12, 1988, Petitioner, John Carl English, filed an application for licensure as a real estate salesman with the Department of Professional Regulation, Division of Real Estate. That application requested information regarding Petitioner's past and specifically asked the following: "6. 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?" Petitioner's response to question 6 was "yes."

   
   

2. In response to question 7, Petitioner disclosed that he had been convicted of income tax evasion. Petitioner attached information to the application to further clarify his past activities and to disclose his parole status. That information provided:

   
   

   #6 continued:

   
   

   1967-Virginia Beach, Virginia

   Charge: Contributing to delinquency of minors (sale of marijuana by 18 year old to 17 year old) Disposition: Fine paid. Sentence suspended.

   
   

   1969-Virginia Beach, Virginia Charge: Maintaining a nusiance(sic)

   Disposition: Three year sentence overturned by Federal Court.

   Statute removed by legislature.

   
   

   1976-Virginia Beach, Virginia Charge: Posession(sic) of marijuana Disposition: Sentence suspended

   
   

   1977-Fort Lauderdale, Florida

   Charge: Posession(sic) of marijuana, hashish, cocaine. (by association)

   Disposition: Case dismissed

   
   

   1978-Pensacola, Florida

   Charge: Posession(sic) of firearm by convicted felon (related directly to 1977 arrest)

   Disposition: Case dismissed (no convicted felon)

   1982-Charges and locations:

   Charleston, South Carolina-marijuana conspiracy Charleston, South Carolina-marijuana conspiracy

   
   

   Panama City, Florida-marijuana conspiracy Fort Lauderdale, Florida-IRS information

   Disposition: Guilty pleas to four seperate(sic) Federal charges with consecutive sentences under B2 rule.

   Federal incarceration from February 27, 1982 until paroled on January 20, 1986. The aggregate sentence of twenty years, derived from four terms of five years, was mitigated by the B2 rule.

   
   

   #7 continued:

   Re: Income Tax Evasion

   Guilty plea was entered in 1984 under Federal Rule 20 at the Federal Courthouse, Tallahassee, Florida. The case originated in Fort Lauderdale, Florida. I pled to information supplied by myself for the year 1978 in the amount of 161,000 dollars. The resulting lien will be litigated when timely.

   
   

3. Based upon Petitioner's record, he will be on parole until February 27, 2002.

   
   

4. The Department received three written references from individuals who were aware of Petitioner's conviction.

   
   

5. On March 30, 1989, counsel for the Florida Real Estate Commission advised Petitioner that his application for licensure had been denied based upon his answers to Questions 6 and 7. Specifically, that notice advised Petitioner that applicants for licensure are to be "honest, truthful, trustworthy, and of good character, and shall have a good reputation for fair dealing..." in accordance with Section 475.17(1), Florida Statutes. Upon receipt of the notice, Petitioner requested an informal hearing pursuant to Chapter 120, Laws of Florida.

   
   

6. On May 22, 1989, Petitioner was notified that his request had been placed on the agenda to appear before the FREC on June 21, 1989. The record is unclear as to whether Petitioner appeared at that time; however, on June 26, 1989, Petitioner was informed that the FREC had denied his application.

   
   

7. On July 17, 1989, Petitioner requested a formal hearing to present evidence regarding his qualification for licensure. That request was forwarded to the Division of Administrative Hearings for further proceedings.

   
   

8. Linda Levine is the manager of Viscaya Title Company which is located in Jupiter, Florida. Ms. Levine hired Petitioner to work for the title company as a marketing representative. At the time of the hearing, he had been employed continuously for Ms. Levine for the last year and a half. During that time, Ms. Levine has experienced no problems with Petitioner's work and does not question his trustworthiness or honesty. Petitioner is the only other employee at the title company with access to the private office. He has been entrusted with valuables and has represented the company before the public and lending institutions without incident. Ms. Levine meets with Petitioner's parole officer monthly and was fully aware of his past prior to his employment.

9. Barbara Ann Heilman is a real estate licensee employed with Investment Equity Real Estate. Ms. Heilman met Petitioner approximately two years ago when she listed his home for sale. From that meeting, Ms. Heilman and Petitioner developed a professional relationship. Since he was just beginning at the title company and she was in full-time real estate sales, Ms. Heilman recommended Viscaya for closings. Petitioner did a very good job. Subsequently, she has recommended him to others in real estate because he has performed very conscientiously. Ms. Heilman has entrusted Petitioner with checks and has no hesitancy in referring others to him. Ms. Heilman was aware of Petitioner's past because he disclosed it to her when she listed his home.

   
   

10. David T. Doyle operates an insurance investment firm which handles casualty and life insurance as well as insurance investments such as pension plans and profit sharing. He has been in this area of work for twenty-two years. Mr. Doyle met Petitioner at a city council meeting approximately a year and a half to two years ago. The two men attended the meeting because of their mutual interest in a plan that was before the council; and they became friends after talking about the proposed project. Subsequently, Mr. Doyle and Petitioner began discussions regarding joint business opportunities. As a result, Petitioner has referred potential investors for projects to Mr. Doyle and the two hope to develop one of the companies. Petitioner advised Mr. Doyle regarding his past criminal record. Mr. Doyle has offered Petitioner the opportunity to become part owner of their joint business venture.

    
    

11. Petitioner's original sentences specified he would serve two ten year terms. After cooperating with the authorities, Petitioner was successful in having the sentence reduced to two five year terms running concurrently. Petitioner was incarcerated for forty-seven months and was released on parole in January, 1986. Petitioner will be on special parole after his regular parole is terminated. Any violation of the parole may result in Petitioner being taken into custody.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

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

    
    

    An applicant for licensure who is a natural person shall be 18 years of age, a bona fide resident of the state, honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing. . . 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 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.

14. Section 475.25, Florida Statutes specifies the grounds for discipline for which the FREC may deny an application for licensure or may fine, suspend or revoke a licensee's registration. Among the grounds for discipline is a subsection regarding the conviction of a crime involving moral turpitude or fraudulent or dishonest dealing. Section 475.25(1)(f), Florida Statutes.

    
    

15. In this case, Petitioner bears the burden of proving his entitlement to licensure. The admissions found in Petitioner's application and the submission of the court records establish a basis for denial; consequently, the ultimate issue is whether, because of the lapse of time and subsequent good conduct and reputation, or other sufficient reason, the Petitioner has shown that his licensure (upon successful examination) would not be likely to endanger the interests of the public and investors.

    
    

16. To that end, Petitioner offered the uncontroverted testimony of three individuals who have business relationships with him. Each of these persons verified that Petitioner is trustworthy and enjoys a good business reputation. As a salesman, Petitioner would perform real estate acts under the direction, control, or management of another person. Section 475.01(d), Florida Statutes. Petitioner fully disclosed his past criminal record on the application for licensure, admitted the extent of his past wrongdoing, and successfully completed the term of his confinement. Not only did Petitioner disclose his past to the FREC, he has been candid with all three of the individuals with whom he has established business relations who testified. In return, those individuals have extended trust and responsibility to Petitioner which he has fully met. Petitioner has established that his licensure as a real estate salesman would not be likely to endanger the interests of the public and investors.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order

approving the application for licensure submitted by the Petitioner so that he

is entitled to examination for licensure as a real estate salesman.

DONE AND ENTERED this 14th day of December, 1989, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1989.

APPENDIX TO CASE NO. 89-4051

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. To the extent that Petitioner's proposed findings of fact (unnumbered paragraphs with multiple proposed facts) are addressed in the findings numbered

   5 through 11, they are accepted; otherwise, rejected as irrelevant, recitation of testimony not specifying fact, or immaterial. Further, Petitioner included statements of a preliminary nature which are not relevant to the issues of this case.

   
   

2. The "findings" presented in the numbered paragraphs 1 through 4 are rejected as conclusions of law or argument.

COPIES FURNISHED:

John R. Howes

700 South Andrews Avenue Suite 200

Fort Lauderdale, Florida 33316

Manuel F. Oliver

Assistant Attorney General Department of Legal Affairs

400 West Robinson Street Suite 212

Orlando, Florida 32801

Darlene F. Keller, Division Director Department of Professional Regulation, Division of

Real Estate

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32801

Kenneth E. Easley General Counsel

1940 North Monroe Street Tallahassee, Florida 32399-0792

Docket for Case No: 89-004051

Orders for Case No: 89-004051