STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTER D. SHEALY, III )

)

Petitioner, )

)

vs. ) CASE NO. 91-3147

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on October 17, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Joel Hirschhorn, Esquire

Robert M. Einhorn, Esquire Joel Hirschhorn, P.A.

2600 Douglas Road, Penthouse One Coral Gables, Florida 33134

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General Department of Legal Affairs

400 West Robinson Street, Suite 107 South Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner's application for licensure as a real estate salesman should be granted.

PRELIMINARY STATEMENT

By letter dated May 15, 1991, Respondent notified Petitioner that his application for licensure as a real estate salesman had been denied. Petitioner requested a formal hearing, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 16, 1991. The proceeding was assigned to Hearing Officer Michael M. Parrish on May 23, 1991.

A formal hearing was scheduled for October 17, 1991, pursuant to a Notice of Hearing issued on June 19, 1991. An Order Of Prehearing Instructions was entered on June 19, 1991, and the parties filed the required Prehearing Stipulation on October 11, 1991. The matter was transferred to the undersigned on October 14, 1991.

At the formal hearing, Petitioner testified in his own behalf and presented the testimony of four witnesses. 1/ Petitioner submitted two exhibits for

admission in evidence. Petitioner's Exhibits 1 and 2 were admitted in evidence without objection. 2/ Respondent called no witnesses and submitted one exhibit for admission in evidence. Respondent's Exhibit 1 was admitted in evidence without objection. 3/

A transcript of the record of the formal hearing was filed with the undersigned on December 20, 1991. Proposed findings of fact and conclusions of law were timely filed by Petitioner on November 21, 1991. Respondent did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Petitioner filed an application for licensure as a real estate salesman on or about January 22, 1991. Respondent denied Petitioner's application on or about April 25, 1991.

   
   

2. The sole basis for Respondent's denial of Petitioner's application was Petitioner's status as a defendant in multiple civil lawsuits filed in the United States District Court for the Southern District of Florida. Petitioner voluntarily stated in answer to Question 8(b) on his application that he was a defendant in those suits.

   
   

3. The lawsuits at issue arose from the failure of Centrust Savings Bank. Petitioner was President of Centrust Savings from sometime in February, 1988, to sometime in July, 1989. Petitioner served on the Board of Directors of Centrust from sometime in August, 1987, to sometime in July, 1989. The lawsuits allege that Petitioner and other officers and directors of Centrust breached their fiduciary duties to the corporation and violated federal securities laws.

   
   

4. The allegations against Petitioner in the law suits at issue are nothing more than allegations in civil suits. Petitioner has motions to dismiss in each law suit. There has been no judicial determination or finding of wrongdoing by Petitioner in any of the law suits in which Petitioner is a named defendant.

   
   

5. The uncontroverted evidenced established that Petitioner is an honest, truthful, and trustworthy individual. Petitioner is of good moral character and has an impeccable reputation for honesty and fair dealing in the business community.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

7. Petitioner, as the applicant, has the burden of proof in this proceeding. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 19810; Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner must demonstrate by a preponderance of the evidence that he is qualified for licensure.

   
   

8. Petitioner satisfied his burden of proof in this proceeding. Petitioner responded truthfully to questions regarding his involvement in the cases pending against Centrust. Untruthfully responding to inquiries of the Respondent is a valid ground for denying a license. Gentile, M.D., v.

   Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087 (Fla. 1st DCA 1984). Such an act evidences sufficient lack of good moral character to deny Petitioner's application for a license as a real estate salesman. Petitioner is not an untruthful applicant who lacks sufficient moral character for licensure as a real estate salesman.

   
   

9. Petitioner is of good moral character and is trustworthy. The testimony presented by Petitioner and Petitioner's own testimony explaining his involvement in the law suits in question, his involvement at Centrust, his professional career, and his reputation was credible, convincing, and uncontroverted.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's

application for licensure as a real estate salesman.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of January 1992.

DANIEL MANRY

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 23rd day of January 1992.

ENDNOTES

1/ Petitioner presented the testimony of: Ms. Joy Alschuler, Vice President and Branch Manager of Jefferson National Bank; Mr. George G. Gundersen, President and Chief Executive Officer of Centrust Mortgage Corporation; Shepard Broad, Esquire, Founder of American Savings and currently in private practice at the age of 85; Mr. Thomas D. Coltrane, Real Estate Broker.

2/ Petitioner's Exhibit 1 and 2 are copies of letters of recommendation from 11 individuals who know Petitioner professionally.

3/ Respondent's Exhibit 1 is a composite exhibit consisting of Petitioner's application for licensure and related internal documents prepared by Respondent.

APPENDIX TO RECOMMENDED ORDER

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those

proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

Respondent submitted no proposed findings of fact.

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street

P.O. Box 1900

Orlando, FL 32802-1900

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792 Manuel E. Oliver, Esquire Assistant Attorney General Suite 107 South

400 West Robinson Street Orlando, Florida 32801

Joel Hirschhorn, P.A. 2600 Douglas Road Penthouse One

Coral Gables, Florida 33134

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: 91-003147

Orders for Case No: 91-003147