STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY F. BRYANT, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3222

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on September 11, 1991, in Jacksonville, Florida.

APPEARANCES

FOR PETITIONER: Larry F. Bryant, pro se

4402 Travelers Road

Jacksonville, Florida 32210

FOR RESPONDENT: Joselyn M. Price, Esquire

Department of Legal Affairs

400 West Robinson Street Suite 107 South

Orlando, Florida 32801 STATEMENT OF THE ISSUES

Whether the Petitioner is qualified for licensure as a Florida real estate salesman.

PRELIMINARY STATEMENT

At the hearing, the Petitioner testified in his own behalf and submitted Exhibits 1-6. The Respondent introduced Exhibit A and a composite exhibit. The parties stipulated that the Petitioner had been convicted of a felony in 1986 and answered "no" to Question No. 14 on the application, which stated:

Have you ever been denied, or is there now pending a proceeding to deny your application for a license, registration, or permit to practice any regulated profession, occupation or vocation, or have you withdrawn an application for such a license, or this or any other state, province, district, territory, possession or nation, because of alleged fraudulent or dishonest dealing or violation of law?

The Petitioner wrote a letter arguing his cause, which was read and considered. The Respondent did not present proposed findings of fact.

FINDINGS OF FACT

1. The Petitioner made application for licensure as a Florida real estate salesman on November 20, 1990. His application was received by the Respondent on December 12, 1990. The Respondent advised the Petitioner by letter dated February 28, 1991 of its denial of the Petitioner's application on February 20, 1991 and of the Petitioner's right to a hearing pursuant to Chapter 120, Florida Statutes. The Petitioner filed a timely request for a formal hearing.

   
   

2. The denial of the Respondent's application for licensure was based upon the Petitioner's answers to Question Nos. 7 and 15 on the application.

   
   

3. Question No. 7 stated: "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?"

   
   

4. The Petitioner answered "yes" to Question No. 7 and gave the following details:

   
   

   On June 26, 1986 I pleaded guilty to one count of sale or delivery of dilaudid, a second degree felony, and was sentenced to four (4) months in jail with a reduced sentence at 73 days with no probation.

   
   

5. Question No. 15 stated:

   
   

   1. Has any license, registration or permit to practice any regulated profession, occupation or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?

      
      

   2. Have you ever resigned or withdrawn from, or surrendered, any license, registration or permit to practice any regulated profession, occupation or vocation while such charges were pending?

      
      

6. The Petitioner answered "no" to both parts of Question No. 15.

   
   

7. On November 16, 1985, the Petitioner was arrested and subsequently plead guilty to selling Dilaudid, a controlled substance. The court sentenced the Petitioner to spend time in a halfway house and pay a $5,000.00 fine.

   
   

8. The parties stipulated that this was a felony conviction.

   
   

9. The Petitioner had been previously licensed as a Florida real estate salesman and upon his conviction, had notified the Respondent, as required by law.

10. After notification of the Petitioner's conviction, the Respondent instituted an administrative complaint against the Petitioner to revoke his Florida real estate license. On February 18, 1987, the Respondent entered its Final Order revoking the Petitioner's license because of his conviction of a felony.

    
    

11. The Petitioner explained that he incorrectly answered Question No. 15 by mistake and without the intent to mislead the Respondent. The Petitioner pointed out that he had originally notified the Respondent of his conviction and had revealed his conviction in his answer to Question No. 7 on the application.

    
    

12. The Petitioner introduced letters from friends and associates that he was a person of good character, who was fully rehabilitated.

    
    

13. The Petitioner stated that he had been a drug salesman and that he had been approached by a woman whom he knew and who asked him to provide Dilaudid to her for a relative who was dying of cancer.

    
    

14. The Petitioner provided the woman with the Dilaudid; she paid him a token amount of money "for his trouble"; and the Petitioner was arrested in a "sting" operation in which the woman was participating.

    
    

15. The court sentenced the Petitioner to four (4) months in a halfway house and no probation.

    
    

16. The Petitioner appeared contrite and rehabilitated. He possesses the good character necessary for licensure as a Florida real estate salesman.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Chapter 120, Florida Statutes.

    
    

18. The Petitioner has the burden to show that he is qualified for licensure. The Respondent stated as grounds for its denial of the Petitioner's application the following: (1) lack of good character because of conviction of a felony, and (2) failure to reveal this revocation of his prior real estate salesman license on his application.

    
    

19. Based upon the facts that the Petitioner revealed his conviction on the application and originally reported the offense to the Respondent upon which the Respondent revoked his license, it is concluded that the Petitioner's answer of "no" to Question No. 15 was a mistake and was not intended to mislead the Commission.

    
    

20. It is well settled that an applicant, who has been convicted of a felony, may be licensed upon a showing that the applicant has regained his/her good character and reputation.

    
    

21. The Petitioner introduced letters testifying to his good character and reputation from fellow Masons, his minister, and others. The facts surrounding the original offense did not show a truly evil intent or that the Petitioner was an "evil dope peddler." The facts show that the Petitioner departed from his normal good conduct based upon appeals to his caring and the fear of past indiscretions being revealed.

22. The letters and the Petitioner's testimony show that the Petitioner has re-established his good character and should be re-licensed.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Petitioner should be re-licensed as a Florida real estate salesman.

DONE AND ENTERED this 18th day of October, 1991, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 18th day of October, 1991.

COPIES FURNISHED:

Darlene Keller, Division Director Division of Real Estate

P.O. Box 1900

Orlando, FL 32802-1900

Jack McRay, Esq.

General Counsel

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, FL 32399-0792

Larry F. Bryant 4402 Travelers Road

Jacksonville, FL 32210

Joselyn M. Price, Esq. Department of Legal Affairs

400 West Robinson Street Suite 107 South

Orlando, FL 32801

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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

LARRY F. BRYANT

Petitioner,

vs. DOAH NO.: 91-3222

FLORIDA REAL ESTATE COMMISSION

Respondent.

/

FINAL ORDER

On January 22, 1992, the Florida Real Estate Commission heard this case to issue a Final Order. After hearing argument of counsel for the Respondent, and being otherwise fully advised in the premises, the Commission enters this Final Order as follows:

The Honorable Stephen F. Dean, a Hearing Officer of the Division of Administrative Hearings, presided over a formal hearing held on September 11, 1991, in Jacksonville, Florida, under the provisions of Chapter 120, Florida Statutes. On October 18, 1991, he issued a Recommended Order, a copy of which is attached hereto as Exhibit A and made a part hereof.

On October 28, 1991, Respondent filed Exceptions to the Hearing Officer's Recommended Order and the Findings of Fact and Conclusions of Law upon which said Order was based. A copy of said Exceptions is attached here to as Exhibit

13 and made a part hereof. The Petitioner did not file Exceptions to the Recommended Order.

After a complete review of the record, the Commission adopts those parts of the Hearing Officer's Findings of Fact and Conclusions of Law, which are not contrary and opposed to the Exceptions filed by the Respondent and accepted by the Commission. However, the Commission states, with particularity, that:

1. It rejects Paragraph No. 12 of the Hearing Officer's Finding of Fact as not being supported by competent substantial evidence of record. The Commission accepts Respondent's exception as set forth in Paragraph 1 of Respondent's Exceptions to the Hearing Officer's Recommended Order.

   
   

2. It rejects the second sentence of Paragraph No. 16 as not being supported by competent substantial evidence of record. The Commission accepts Respondent's Exceptions as set forth in Paragraph 2 of Respondent's Exceptions to the Hearing Officer's Recommended Order.

   
   

3. It rejects Paragraph No. 3 of the Hearing Officer's Conclusions of Law as not being supported by competent substantial evidence of record. The Commission accepts Respondents exception as set forth in Paragraph 3 of Respondent's Exceptions to the Hearing Officer's Recommended Order.

   
   

4. It rejects the first sentence of Paragraph No. 5 of the Hearing Officer's Conclusions of Law as constituting hearsay. The Commission accepts Respondent's exception as set forth in Paragraph 4 of the Respondent's Exceptions to the Hearing Officer's Recommended Order.

   
   

5. It rejects the second and third sentences of Paragraph No. 5 of the Hearing Officer's Conclusions of Law as being findings of fact not supported by extrinsic collateral evidence. The Commission accepts Respondent's exception as set forth in Paragraph 5 of Respondent's Exceptions to the Hearing Officer's Recommended Order.

   
   

6. It rejects Paragraph No. 6 of the Hearing Officer's Conclusions of Law as not being supported by competent substantial evidence of record. The Commission accepts Respondent's exception as set forth in Paragraph 6 of Respondent's' Exceptions to the Hearing Officer's Recommended Order.

   
   

7. The Commission accepts Respondent's exception as set forth in Paragraph

7 of Respondent's Exceptions to the Hearing Officer's Recommended Order.

Further, the Commission rejects the Hearing Officer's Recommendation.

IT IS THEREFORE ORDERED that Petitioner's application for a real estate license be, and the same is hereby, denied.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s.120.68, Florida Statutes, and to Rule 9.110, Florida Rules of Appellate Procedure.

Within 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309 North, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 22nd day of January 1992 in Orlando, Florida.

Darlene F. Keller, Director Division of Real Estate

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Larry F. Bryant, 4402 Travelers Road, Jacksonville, FL 32210; to Hearing Officer Stephen F. Dean, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-1550; and to Joselyn M. Price, Assistant Attorney General, 400 West Robinson Street, Suite 107 South, Orlando, FL 32801, this 6th day of February 1992.

Director

Docket for Case No: 91-003222

Orders for Case No: 91-003222