STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANNESSA MICHELLE HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0314

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on June 27, 1990, in Jacksonville, Florida.

APPEARANCES

For Petitioner: H. Randolph Fallin, Esq.

437 East Monroe Street, Suite 2 Jacksonville, Florida 32202

For Respondent: Manuel E. Oliver, Esq.

Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner should be licensed as a real estate salesman by the Respondent.

PROCEDURAL STATEMENT

At the formal hearing, the Petitioner testified on her own behalf and offered into evidence four exhibits. The Respondent presented no testimony and offered one exhibit into evidence. All exhibits were admitted.

At close of the hearing, the parties agreed to extend the deadline for the filing of proposed recommended orders to twenty days from the filing of the transcript. The transcript of the hearing was filed on July 25, 1990. Only the Respondent filed a proposed recommended order. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. On or about July 11, 1989, Vannessa Michelle Hall filed an application with the Department of Professional Regulation, Division of Real Estate, for licensure as a real estate salesman.

   
   

2. Question #6 of the application states, "[h]ave 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?" Ms. Hall responded in the affirmative.

   
   

3. Question #6 further provides, "[i]f you answered "YES," please state the details including dates and outcome in full." In response, Ms. Hall wrote that she had been receiving public assistance funds (AFDC), that she had exceeded the maximum income permissible for receipt of such funds, and had been "judged accordingly."

   
   

4. In relevant part, question #7(a) of the application states, "[h]as any judgement or decree of a court been entered against you. in which you were charged. . .with any fraudulent or dishonest dealing?" Ms. Hall responded in the affirmative. The question provides that, if the answer is affirmative, the applicant should "attach your complete signed statement of the charges and facts, together with the dates, name and location of the court in which the proceedings were held...." Ms. Hall did not attach the additional information sheet.

   
   

5. On July 24, 1989, the Respondent requested further information regarding Ms. Hall's response to application question #6. In response, Ms. Hall replied that she had been found guilty of "AFDC fraud", had been sentenced to six months at the Jacksonville women's correctional facility, and had been required to make restitution in the amount of $1837.

   
   

6. The evidence establishes that the fraud conviction occurred in 1985. In addition to restitution and incarceration, Ms. Hall was also placed on probation for a 30 month period. She has not completed making payments on the required restitution.

   
   

7. Upon investigation, the Respondent learned that Ms. Hall had failed to disclose several other criminal convictions. The Respondent, citing the additional information, denied Ms. Hall's application for licensure based upon her responses to questions 6 and 7.

   
   

8. In 1982, Ms. Hall was convicted of issuing and insufficient funds check and was required to make restitution in the amount of $25. Ms. Hall failed to disclose the information on her application.

   
   

9. In 1983, Ms. Hall was found in contempt of court and was sentenced to

   60 days incarceration, of which five days were served. Ms. Hall failed to disclose the information on her application.

   
   

10. In 1986, Ms. Hall was convicted of petit theft, violating probation from fraud conviction. Ms. Hall was sentenced to six months incarceration. Ms. Hall failed to disclose the information on her application.

    
    

11. On February 4, 1989, Ms. Hall was arrested for gambling. Ms. Hall explained that she was in a pool hall where other persons were playing cards and gambling, but was not herself playing. Law enforcement officers entered the

    hall in pursuit of other persons. Upon their entry, the card players left the table. The police noted the gambling table, and attempted to identify the persons who had been playing. When none of the persons in attendance would identify the players, the police arrested all persons present. Like the others present, Ms. Hall was arrested because she would not identify the card players for the police. She remained jailed for one day. Although the evidence as to whether Ms. Hall was convicted of the charge is unclear, at the hearing her attorney stated his belief that she not contested the charge and had been convicted. Ms. Hall failed to disclose the information on her application.

    
    

12. Although Ms. Hall attributed her failure to disclose the gambling conviction to memory lapse, she offered no explanation for the failure to disclose the other convictions.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The Petitioner has the burden of proving that she is entitled to licensure as a real estate salesman. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (1st DCA 1977). Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.

    
    

15. The Department of Professional Regulation is responsible for licensure of qualified applicants as determined by the Florida Real Estate Commission. Section 475.181(1), Florida Statutes. The commission certifies any applicant who passes an examination and satisfies the requirements of section 475.17, Florida Statutes. Section 475.181(2), Florida Statutes. In relevant part, section 475.17, Florida Statutes, provides that an applicant must be honest, truthful, trustworthy, and of good character.

    
    

16. The Petitioner had two opportunities to disclose her criminal convictions, upon the filing of the application, and upon the Department's subsequent request for further information. The Petitioner failed to fully disclose the information on either occasion. No credible rationale was provided which could explain of excuse the nondisclosure. The failure to disclose such information is indicative of a lack of honesty, truthfulness, and trustworthiness.

    
    

17. In relevant part, section 475.25(1)(f), Florida Statutes, provides that the "commission may deny an application. if it finds that the...applicant...has been convicted or found guilty, regardless of adjudication, of a crime... .which involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph...." Moral turpitude has been defined to include behavior "contrary to justice, honesty, principle, or good morals." Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981). The Petitioner's separate convictions for fraud, passing a worthless check, and theft, are for crimes involving moral turpitude. The statute provides that the commission may deny an application for licensure on such grounds. The evidence establishes that the commission acted appropriately in so doing.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Department of Professional Regulation, Florida Real Estate Commission, enter a Final Order denying the Petitioner's application for licensure as a real estate salesmen.

DONE and RECOMMENDED this 11th day of September, 1990, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1990.

APPENDIX CASE NO. 90-0314

The Petitioner did not submit a proposed recommended order.

The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

3. Rejected, not supported by the evidence. The cited testimony does not establish that Ms. Hall received a 30 day sentence running concurrently with the six month sentence.

6-7. Rejected, immaterial.

COPIES FURNISHED:

H. Randolph Fall in, Esq.

437 East Monroe Street, Suite 2 Jacksonville, Florida 32202

Manuel E. Oliver, Esq.

400 West Robinson Street, Suite 212 Orlando, Florida 32801

Darlene Keller Division Director

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: 90-000314

Orders for Case No: 90-000314