STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

STEPHEN D. LUKEFAHR, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2085

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on May 16, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Stephen D. Lukefahr, pro se

5251 14th Street N.E.

St. Petersburg, Florida 33703

For Respondent: Manuel E. Oliver, Esquire

Department of Legal Affairs

400 West Robinson Street Orlando, Florida 32801

By letter dated March 12, 1991, Stephen D. Lukefahr, Petitioner, requested a formal hearing to contest the Florida Real Estate Commission's, Respondent's, denial of his application to take the examination for real estate salesman contained in a letter dated February 28, 1991. Grounds for denial of Petitioner's application as noted in the letter dated February 28, 1991, is based upon Petitioner's answers to question 7 on the license application and/or his criminal record. In addition to the criminal violations listed, it is alleged that Petitioner failed to include the arrest and conviction of June 25, 1986 for possession of marijuana.

At the hearing, the Respondent submitted Petitioner's application file as Exhibit 1, Respondent presented the testimony of three witnesses, including himself, and three additional exhibits were admitted into evidence. Proposed findings were not timely filed by the parties.

Based upon the evidence presented, I submit the following:

FINDINGS OF FACT

1. In his application for licensure dated September 6, 1990, Petitioner answered question 7 pertaining to conviction of a crime in the affirmative, and submitted an attached list showing:

   Hammond, Louisiana, February 1977. Possession of marijuana with intent to distribute. Guilty plea, one year sentence.

   
   

   Tallahassee, Florida, November 30, 1977. Possession of marijuana: Guilty plea. One year sentence.

   
   

   Tallahassee, Florida, November 30, 1977. Possession of marijuana and conspiracy to possess marijuana with intent to distribute. Ten year sentence to be served concurrently.

   
   

   Tallahassee, Florida, September 11, 1986. Failure to appear. Guilty plea. Five year sentence, to be served consecutively.

   
   

   Tallahassee, Florida, December 19, 1986. Possession of marijuana with intent to distribute. Guilty plea. Eight year concurrent sentence.

   
   

   I served a total of 61 months in federal prison of an aggregate 15 year sentence from March 27, 1986 to August 3, 1990.

   
   

2. Petitioner's FBI rap sheet shows:

   
   

   1. Arrested 2/22/77 arrested and charged in Louisiana with possession of marijuana with intent to distribute.

   2. Arrested 11/4/77 Pensacola on charge of conspiracy to possess with intent to distribute marijuana. Sentence 60 months confinement, $15,000 fine.

   3. Arrested 3/27/86 on charge of failure to appear.

   4. Arrested 5/26/86 on charge of unlawful possession of marijuana. Sentence one year confinement.

   5. Arrested 11/21/86 on charge of possession with intent to distribute marijuana. Sentence 8 year confinement.

      
      

3. Following his conviction on November 30, 1977, Petitioner was released on bail and failed to appear for sentencing. He remained a fugitive until he was apprehended on 3/27/86 and incarcerated in a federal correction institution. The 6/25/86 entry on the rap sheet relates to the 1977 convictions and five year sentence Petitioner failed to serve.

   
   

4. Petitioner correctly included all convictions on his application for licensure.

   
   

5. While serving his 15 year accumulated sentence, Petitioner decided to turn his life around. During his last three years in prison, Petitioner took college courses and correspondence courses in real estate (Exhibit 2).

6. Petitioner received a three month credit on his presumptive parole date for superior program achievement; specifically: completed vocational training in electronics; completed an extension course in real estate appraisal; and completed an associate degree in real estate appraisal.

   
   

7. Petitioner's sister, who testified in these proceedings, is a real estate broker and encouraged Petitioner to study for and enter the real estate field.

   
   

8. While in federal prison, Petitioner received a Jaycees Presidential Award of Honor in June 1988 in acknowledgment of his support in community fund raising projects.

   
   

9. Subsequent to his release from prison on August 3, 1990, Petitioner worked as an assistant in two real estate offices, served as a volunteer handler of search dogs used in law enforcement and search and rescue missions, worked with the guardian ad litem program and with project PET where he takes dogs into nursing homes to serve as temporary pets for elderly patients.

   
   

10. Although Respondent is on five years probation and will be eligible for release from parole in 1993, he has complied with all terms of his parole, including the monthly payments on the fine assessed against him.

    
    

11. Petitioner exhibited a sincere interest in working in the real estate field and has at least two real estate firms willing to employ him as a salesman once he is licensed.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 475.17, Florida Statutes, provides that an applicant for licensure must be honest, truthful, trustworthy and of good character. An applicant who has committed an offense for the commission of which a license may be revoked is deemed unqualified 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.

    
    

13. Section 475.25(1)(f), Florida Statutes, provides that a license may be revoked if the licensee has been found guilty of an offense involving moral turpitude. The offenses of which Petitioner has been found guilty and sentenced to prison are offenses involving moral turpitude. Accordingly, Petitioner is not qualified for licensure unless he has shown by competent and substantial evidence that the interests of the public and investors will not likely be endangered by the granting of the registration.

    
    

14. Normally a recommendation for licensure would not be submitted by the undersigned while the applicant is still on probation from a prison sentence. However, in this specific case Petitioner has presented substantial evidence that he turned his life around several years ago and that, during the past five years, some of which was spent in prison, Petitioner has led an exemplary life and has made substantial contributions to society. He has worked in real estate offices in an administrative capacity since his release from prison and has received high accolades from his employers.

15. Further, Petitioner has presented competent evidence exhibiting a sincere desire to succeed in selling real estate. He has been entrusted with buyer's and seller's funds while working as an administrator in a real estate office, and his employer expressed total confidence in Petitioner's integrity and honesty in dealing with trust funds.

    
    

16. From the foregoing, it is concluded that Petitioner has submitted competent and substantial evidence demonstrating that, if licensed as a real estate salesman, the interests of the public and investors will not likely be endanger.

RECOMMENDED

It is recommended that Stephen D. Lukefahr be deemed qualified for licensure as a real estate salesman.

RECOMMENDED this 11th day of June, 1991, in Tallahassee, Florida.

K. N. AYERS 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 June, 1991.

COPIES FURNISHED:

Stephen D. Lukefahr 5251 14th Street N.E.

St. Petersburg, FL 33703

Manuel E. Oliver, Esquire Department of Legal Affairs Suite S107

400 W. Robinson Street Orlando, FL 32801

Darlene F. Keller Division Director Division of Real Estate Post Office Box 1900 Orlando, FL 32801

Jack McRay General Counsel

Department of Professional Regulation

Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

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: 91-002085

Orders for Case No: 91-002085