vs. ) CASE NO. 93-6937
Respondent. )
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 22, 1994, in West Palm Beach, Florida.
For Petitioner: Mr. Herbert Pontz, pro se
For Respondent: Steven D. Fieldman, Esquire
The issue presented is whether Petitioner's application for licensure as a real estate salesperson should be granted.
On October 20, 1993, Respondent denied Petitioner's application for licensure, and Petitioner timely requested a formal hearing regarding that denial. This matter was thereafter transferred to the Division of Administrative Hearings to conduct that formal proceeding.
Petitioner testified on his own behalf. Additionally, Petitioner's Exhibits numbered 1-3 and Respondent's Exhibits numbered 1-10 were admitted in evidence.
Both parties submitted post-hearing proposed findings of fact. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
Petitioner was born in 1951 and graduated from high school in 1969. He then attended the University of Florida for four years, acquiring an associate of arts degree, with a major in marine biology. He returned to Palm Beach County around the beginning of 1974 and worked as a waiter for approximately eight months.
In March 1974, Petitioner made restitution of approximately $52 for issuing a check on a closed bank account. As a result, the charges pending in Palm Beach County were nolle prossed.
In July 1974, Petitioner began working in the Palm Beach County Property Appraiser's Office. In approximately 1981, following the appointment of a new property appraiser, Petitioner's employment was terminated. He then worked at a bank performing appraisals for approximately one year.
Petitioner then became a partner in Real Estate Management, Inc., a company which represented taxpayers contesting their property assessments issued by the Palm Beach County Property Appraiser's Office. Petitioner did not have a real estate license during the seven months that he worked for that company. When questioned during the final hearing as to Petitioner's activities with that company during a time that he did not posses a real estate license, Petitioner admitted that his activities "technically" fell within the category of appraising.
Petitioner next formed a real estate development company with three partners. Petitioner was with that company, Sundown Development, Inc., for approximately one year. He left that company " . . . to go into the hotel business for a more stable pay."
Thus, in 1983, Petitioner began working as a night auditor in the hotel business. He continued to work as a night auditor at different hotels until approximately 1993, when he was laid off from his last night auditing job and collected unemployment benefits. Since then, he has "worked in banquets" at a restaurant.
In September 1987, in Case No. 87-1896, Petitioner pled "no contest" to retail theft charges. Adjudication was withheld, restitution was ordered, and Petitioner was placed on ninety days probation and required to perform community service. This retail theft charge was for shoplifting. Although Petitioner testified that the merchandise he took had a value of only $20, he was unable to remember what the merchandise was. Petitioner was subsequently charged with violating probation and was arrested. Petitioner explains that the arrest for violation for probation resulted from a misunderstanding and that he had completed his community service by collecting political signs.
Although the official records of the Criminal Division of the Circuit Court of the Fifteenth Judicial Circuit of Florida, in and for Palm Beach County, reflect another charge of retail theft a month later in October of 1987, Petitioner's explanation is that the records must be in error because he was only arrested once for shoplifting. That Case No. is 87-24669 and may represent the violation of probation charge.
Case No. 86-6719 before the Circuit Court in Palm Beach County involved offenses committed from April 23 through April 26, 1986. Petitioner was charged in one information, consisting of one count of grand theft and eight counts of worthless checks. The charges were filed in June, and Petitioner was arrested in July, 1986. In November of 1987 he pled nolo contendere to one worthless check count, and the other counts were nolle prossed. He was adjudicated guilty and placed on probation for eighteen months. Petitioner's explanation is that although he did not have the money to cover the checks when he wrote them, he had the means to get money to cover the checks but was arrested and put in jail on arson charges preventing him from doing so.
There was a fire at a beauty salon in Palm Beach County in May of 1984, in which a person died. Petitioner was first arrested on a charge of second degree arson in June 1985. In September of 1985, Petitioner was arrested again for his failure to appear in court on that charge. On February 18, 1986, Petitioner's $3,000 bond was forfeited and an arrest warrant was issued due to Petitioner again failing to appear in court. In April, Petitioner was again arrested and was jailed without bond. On May 11, 1986, Petitioner entered a plea of guilty, and the Court's commitment order on that date specifically includes after the notation of Petitioner's guilty plea the words "as charged straight up to the [Court]." On September 24, 1986, Petitioner was adjudicated guilty "as charged" and was sentenced to imprisonment for one year and one day with credit for time served.
Petitioner's explanation is that he was not involved in the arson but was arrested and held in jail as a political prisoner, that is, governmental officials knew that he was innocent but wanted to convict him in retaliation for his political activities. Petitioner further explains that he pled guilty at the suggestion of his attorney as a plea of convenience in order to not have to spend additional time in jail awaiting trial. It was also Petitioner's belief that if he had prevailed at trial, he would have been indicted for felony-murder related to that arson and would have spent another year in jail awaiting trial.
Petitioner admitted that in entering his plea of guilty, he was placed under oath and was questioned by the judge as to whether Petitioner was entering a guilty plea because he was guilty or because someone had promised him something. Petitioner explained that in any plea bargain situation, the judge questions the defendant concerning whether the defendant has been promised anything in exchange for his plea, that the answer is always that the defendant has been promised something, but the defendant is always instructed to tell the judge that he has not. Petitioner's testimony at the final hearing in this cause as to the mechanics of plea bargains, while interesting, is not supported by the documents admitted in evidence in this cause. The certified copies of the court documents do not indicate that there was a plea bargain; rather, those documents indicate that Petitioner pled guilty to the crime with which he was charged, not some other crime, and a pre-sentence investigation was then ordered by the court. Four months later, Petitioner was adjudicated guilty as charged by the court, and he was sentenced.
Although Petitioner testified that his civil rights were automatically restored to him very shortly after he was released from incarceration following his conviction for second degree arson, Petitioner did not offer any documentary evidence to support such testimony.
Petitioner's driver's license has been suspended five times since his release from jail following his conviction for second degree arson. The last suspension was for failure to comply with financial responsibility requirements; the others were for failure to pay his traffic fines. In January 1993, Petitioner pled guilty to driving while his license was suspended.
On May 10, 1993, Petitioner filed an application for licensure as a real estate salesperson. Question numbered 9 of that application reads, in part, as follows:
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? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned...
If you answered "YES," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper.
Your answer to this question will be checked against local, state and federal records.
Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate.
Petitioner answered question numbered 9 in the affirmative and attached to his application as his entire explanation the following:
QUESTION #9
4/74 INSUFFICIENT FUND/CHECK MADE RESTITUTION I THINK CHARGES WERE DROPPED
5/86 ARSON 2ND DEGREE PLED NOLO CONTENDERE IN MY OWN BEST INTEREST
7/86 INSUFFICIENT FUND/CHECK PLED NOLO CONTENDERE
TO THE BEST OF MY KNOWLEDGE THIS IS THE EXTENT OF MY CRIMINAL RECORD INVOLVING ANY SORT OF PLEA OR CONVICTION
The April 1974 offense referred to by Petitioner is a fair summary of Petitioner's March 1974 restitution in the amount of $52 for issuing a check on a closed bank account. However, Petitioner's explanation in his answer to question numbered 9 regarding the second degree arson conviction is not accurate since Petitioner pled guilty to that charge and did not plead nolo contendere. Petitioner's last disclosure regarding the insufficient funds check in July of 1986 minimizes his acts of writing nine worthless checks over a period of four days by only disclosing his plea to one count of the nine count information filed in Case No. 86-6719.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
Section 475.17(1)(a), Florida Statutes, provides as follows:
An applicant for licensure who is a natural person must . . . be honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for... a salesperson's license must be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relationship of trust and confidence. . . .
[I]f the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this chapter had the applicant then been registered, the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission
that the interest of the public and investors will not likely be endangered by the granting of registration.
Further, Section 475.25(1), Florida Statutes, provides that the Florida Real Estate Commission may deny an application for licensure (or revoke or suspend a license) if it finds that the applicant, inter alia:
(f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the activities of a licensed broker or salesperson, or involves moral turpitude or
fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph.
The record of a conviction certified or authenticated in such form as to be
admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.
The Commission's preliminary agency action of denial of Petitioner's application for licensure was based upon Petitioner's failure to prove that he is of good character, based upon his answer to question numbered 9 of his application and his criminal record. Petitioner has failed in his burden of proving that he is honest, truthful, trustworthy, and of good character. Petitioner did not reveal his entire criminal record in his application for licensure, and that which he disclosed was not complete and accurate.
As to completeness, Petitioner did not disclose his arrest for shoplifting to which crime he pled no contest. Although Petitioner correctly argues that he was not required to disclose parking or traffic tickets, the clear language of question numbered 9 of the application did require Petitioner to disclose the five suspensions of his driver's license for failure to comply with financial responsibility requirements and for failure to pay his traffic fines. Petitioner also failed to disclose his plea of guilty to driving while his license was suspended, just a few months before he filed his application for licensure.
As to his conviction for second degree arson, Petitioner testified that he is not guilty but simply entered a plea of convenience in order to obtain his release from jail. Although a plea of nolo contendere is considered a plea of convenience which would entitle an applicant to explain the circumstances surrounding the entry of that plea, a plea of guilty is not a plea of convenience. It is an admission of guilt. Petitioner further argues that although he testified falsely under oath when he admitted his guilt to the crime, his testimony in this cause in denying his commission of the crime should be taken as true. Petitioner is entitled to no such presumption of truthfulness in this proceeding, particularly in view of his testimony in this proceeding that he testified falsely in the criminal proceeding.
Further, in answer to question numbered 9 Petitioner advised the Commission that he had pled nolo contendere to the charges. That information is false, as he admitted in this proceeding, and the certified court documents reflect, that Petitioner pled guilty. In response to a request from the Commission to provide additional information regarding his criminal history, Petitioner filed correspondence with the Commission on June 16, 1993. In that correspondence Petitioner advised the Commission that he was in jail while awaiting trial for second degree arson because he was unable to "make bail" since he did not own real property for collateral. At the final hearing, Petitioner admitted that the reason he was in jail was because his bail bond was forfeited after he had failed to appear in court on two separate occasions. Although Petitioner described in great detail in that correspondence his plea arrangement whereby he would enter a plea to the charge of second degree arson and be released from jail, that information is not accurate. Neither the court documents nor an analysis of Petitioner's explanation reveals a plea bargain. Rather, Petitioner pled guilty to that with which he was charged, in May of 1986, and the court ordered a pre-sentence investigation. In September of 1986 Petitioner was adjudicated guilty and sentenced. Lastly, in his response to the Commission's request for additional information, Petitioner advised that the charge involving one returned check was resolved at the same time as Petitioner entered his plea on the second degree arson charge. That information is not true. Petitioner testified during the final hearing regarding the nine-count indictment that it never occurred to anyone to resolve those pending charges at
the same time as the arson charge was resolved and that Petitioner entered a plea to one of those nine charges well over a year after he was released from jail after his conviction for second degree arson.
The question as to whether shoplifting, arson, and writing worthless checks are criminal offenses directly related to the activities of a real estate salesperson requires little discussion. It is concluded that Petitioner's criminal history does involve crimes related to the real estate profession.
Section 475.17, Florida Statutes, provides that an applicant can show rehabilitation due to a lapse of time and subsequent good conduct and reputation. Petitioner would have completed his probation period in approximately mid-1989. Petitioner offered no evidence regarding his activities from that date through the time of the final hearing except that he continued to work as a night auditor until he was laid off in 1993 and collected unemployment benefits, subsequent to which time he has worked "in banquets" at a restaurant. No evidence of any rehabilitation or restitution to society was offered. To the contrary, in January 1993, Petitioner pled guilty to driving while his license was suspended. That act evidences continuing reluctance to observe the law.
As to the provision for licensure based upon Petitioner's subsequent good conduct and reputation, Petitioner submitted seven letters of recommendation, some from people that have known him for fifteen, twenty, and thirty years. Those people represent in their letters that Petitioner is of fine moral character. The record in this cause reveals that over that extended period of time Petitioner has not been of good moral character. One of the letters which professes knowledge of Petitioner's character over the last five years refers to mutual business associates, many occasions involving investment related activities, and Petitioner's business matters. No evidence was offered as to the activities Petitioner has been involved in to which that letter writer referred. Other letter writers referred to continued working relationships with Petitioner in the real estate profession and in the business of real estate appraisal. Since Petitioner is not licensed as a real estate salesman, as a broker, or as an appraiser, the references in the letters to Petitioner's real estate career and his high ethical standards within the real estate profession are curious. Petitioner has, accordingly, failed to prove at this time rehabilitation due to the passage of time and subsequent good conduct and reputation.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application
for licensure as a real estate salesperson.
DONE and ENTERED this 27th day of May, 1994, at Tallahassee, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 1994.
APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6937
Mr. Herbert Pontz, pro se 8927 Sunset Drive
Steven D. Fieldman, Esquire Assistant Attorney General Suite 107 South
Darlene F. Keller, Director Division of Real Estate
Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
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.
