STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD M. LIEBOLD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7185

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel M. Kilbride, held a formal hearing in the above-styled case on February 5, 1991, in Clearwater, Florida.

APPEARANCES

For Petitioner: Richard M. Liebold, (pro se)

2201 Willow Tree Trail Clearwater, Florida

For Respondent: Joselyn M. Price

Assistant Attorney General Suite 107 South

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Petitioner's plea of guilty to the crime of grand theft is to a crime that involves moral turpitude or fraudulent or dishonest dealing, as required by Section 475.25(1)(f), Florida Statutes, before the Commission may lawfully deny his application for licensure as a real estate salesman.

Whether Petitioner is now deemed qualified to hold a real estate licence because of the lapse of time since his plea of nolo contendere and Order Withholding Adjudication of Guilt and his subsequent good conduct and reputation, pursuant to Section 475.17(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By application dated August 6, 1990, Petitioner applied to Respondent for a Florida real estate salesman's license. In a letter dated October 22, 1990, Respondent informed Petitioner that his application had been denied based on his answer to question number seven and his criminal record. On October 28, 1990, Petitioner requested a formal hearing before the Division of Administrative Hearings.

Petitioner testified on his own behalf, and offered no exhibits.

Respondent presented no witnesses and offered into evidence one composite exhibit.

A transcript of the hearing was filed on February 11, 1991. Petitioner filed a letter in the form of closing argument and conclusions of law, but did not offer proposed findings of fact. Respondent waived filing of a proposed recommended order. The arguments of the parties have been given careful consideration.

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

FINDINGS OF FACT

1. By application dated August 6, 1990, Petitioner applied to Respondent for a Florida real estate salesman's license.

   
   

2. Petitioner disclosed on the application, in response to question seven, that he had plead nolo contendere and adjudication of guilt had been withheld for the crime of grand theft on August 1, 1988.

   
   

3. A subsequent criminal records check revealed that Petitioner entered a plea of guilty to the felony charge of Grand Theft, in the Circuit Court for Pinellas County, Florida on August 1, 1988. Adjudication was withheld and he was sentenced to four years probation, and among other conditions is required to repay the victim restitution in the amount of $21,033.00.

   
   

4. Petitioner is presently on probation, which is scheduled to be completed on August 1, 1992. He is complying with the terms of his probation, and is making payments of $100 to $150 per month in restitution. Restitution is not complete.

   
   

5. Petitioner has not been arrested for any other crime or violated any conditions of his release during the period of his probation.

   
   

6. Petitioner testified that his arrest and conviction was based on the fact that he had over $20,000 of an elderly lady's money in his personal checking account, placed there at the request of her nephew and with her consent, for the purpose of investing it in a commodity trading pool. However, during the time the funds were in his personal account, a prior judgment holder levied on the account and removed $6,600 in order to satisfy the judgment. He did not intend to use the funds for his own personal gain. However, he plead guilty to the charge of grand theft on the advice of counsel and with the understanding that the court would withhold adjudication, which was done.

   
   

7. Petitioner is presently licensed by the National Association of Security Dealers (Series 3,7 and 63) to sell commodities and securities, and in the States of Florida, Wisconsin, Illinois and Indiana to sell life, health and variable insurance and annuity products and has not been previously disciplined.

   CONCLUSIONS OF LAW

   
   

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

   
   

9. Petitioner has the burden of proving his eligibility for licensure. Rule 28-6.008(3), Florida Administrative Code; Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981).

   
   

10. Respondent is responsible for granting and denying applications for licenses as a Florida real estate salesman. Section 475.25, Florida Statutes.

    
    

11. One of the grounds for denial of licensure is if the applicant has been convicted or found guilty of a crime that "directly relates to the activities of a licensed . . . salesman or involves moral turpitude . . ." Section 475.25(1)(f), Florida Statutes.

    
    

12. An applicant must have "good character" in order to be licensed. If the applicant has been guilty of acts that would be grounds for revoking his license, he shall be deemed not to be qualified for licensure unless, "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears . . . that the interest of the public and investors will not likely be endangered by the granting of registration." Section 475.17(1)(a), Florida Statutes.

    
    

13. Theft, and in particular grand theft, is a crime of moral turpitude, since it goes directly to a person's honesty, trustworthiness and character and constitutes a violation of one's duties in dealings with members of society. Cf. Pearl vs. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3d DCA 1981) Petitioner's prior good character and present good behavior as a probationer is insufficient to demonstrate rehabilitation. Neither lapse of time nor subsequent good conduct has been sufficient for him to qualify for licensure.

RECOMMENDATION

Based on the foregoing, it is recommended that a Final Order be entered Denying Petitioner's application for a real estate salesman's license, on the basis that he has been convicted of a crime involving moral turpitude.

RECOMMENDED this 18th day of April, 1991, in Tallahassee, Florida.

DANIEL M. KILBRIDE

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 18th day of April, 1991.

COPIES FURNISHED:

Joselyn M. Price, Esquire Assistant Attorney General

Florida Department of Legal Affairs

400 West Robinson Street Orlando, Florida 32801

Richard M. Liebold 2201 Willow Tree Trail Clearwater, FL 34623

Darlene F. Keller Division Director Division of Real Estate Post Office Box 1900

400 West Robinson Street Orlando, FL 32801

Jack McRay General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, FL 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-007185

Orders for Case No: 90-007185