RONALD A. COPELAND, )
vs. )
DEPARTMENT OF BUSINESS AND ) CASE NO. 96-4851 PROFESSIONAL REGULATION, )
Respondent. )
Upon due notice, this cause came on for formal hearing on January 24, 1997, in Lake City, Florida before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Merrill C. Tunsil, Esquire
For Respondent: William N. Halpern
Is Petitioner currently qualified for licensure as a real estate salesman pursuant to Chapter 475, Florida Statutes, upon proof of rehabilitation and good moral character despite his
answer to Question No. 9 of the licensing application and his prior criminal record?
On August 21, 1996, the Florida Real Estate Commission found Petitioner, an applicant for a real estate salesperson's license, not qualified for licensure based on his answer to Question No. 9 of the licensing application and due to his criminal record.
Petitioner timely requested formal hearing.
At formal hearing, the parties' Joint Prehearing Stipulation was admitted as ALJ Exhibit A.
Petitioner presented the oral testimony of Martha Bryan, Alvin Baker, Reverend James D. Johnson, and Joyce P. Tunsil, and testified on his own behalf. He also had an exhibit admitted in evidence, whereby Myron Bilak, Ph.D., testified by deposition.
Exhibit P-2 was not admitted.
Respondent also presented Petitioner's oral testimony and had three exhibits admitted in evidence.
A transcript was filed in due course, and all timely filed proposed findings of fact and conclusions of law have been considered in preparation of this recommended order.
The Respondent Agency denied Petitioner's application for licensure as a real estate salesperson in the state of Florida based upon Petitioner's arrests in 1971 for attempted
auto larceny and house burglaries; his arrest in 1985 for criminal trespass; and his arrest and conviction for manslaughter in 1991.
The charges in 1971 and 1985 were dismissed prior to prosecution. The agency is primarily concerned over Petitioner's 1991 conviction for manslaughter in a shooting death which arose out of a traffic altercation.
The Petitioner affirmatively answered Question No. 9 on the application, which asked whether the Petitioner had ever been convicted of a crime. Question 9 also provided that applicants responding with a "yes" answer should "attach the details . . . in full on a separate sheet of paper."
Along with his salesperson's application, the Petitioner submitted a one page explanation of his affirmative response to Question No. 9, whereby he explained the circumstances of the incident in 1991 which led to his arrest and conviction for manslaughter.
Petitioner signed the application under oath stating that "all answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever . . ."
There are some differences between the order of events and his motivations as described by Petitioner in his application and written narrative and as described by him in his oral testimony at formal hearing. Petitioner's oral testimony at
formal hearing is more detailed than was his prior disclosure. In both his application's written narrative and his oral testimony at formal hearing, Petitioner clearly tried to explain a very sordid episode in the best light for himself.
Petitioner admitted in oral testimony at formal hearing that he had left a lot of detail out of his application's written explanation, due to its length. Petitioner's licensure application explanation stated that he had followed another motorist in 1991 to get his vehicle's tag number, but at formal hearing Petitioner admitted that he also wanted to talk to the other motorist. Petitioner omitted from his application's written explanation the information that in an accident prior to the 1991 incident, when Petitioner had failed to get the other vehicle's tag number, law enforcement personnel had been unable to find the other motorist's vehicle. There are also discrepancies between Petitioner's application's written explanation and his formal hearing testimony as to Petitioner's position (in or out of his car) and the relative positions of Petitioner and his victim at the time the fatal shot was fired in 1991.
Basically, however, the significant facts that Petitioner has never tried to hide from the Florida Real Estate Commission are these: In 1991, Petitioner's car was rammed by another car. In a belligerent manner, Petitioner displayed a gun to the occupants of the other car. After some evasive action,
Petitioner decided to pursue, and did pursue, the other car.
Both cars stopped in a gas station parking lot. Both drivers got out of their cars. Petitioner used his gun to hit the other driver in the head. The gun discharged, killing the other driver. Although the other driver was lying on the ground, Petitioner convinced himself that the other driver was not hurt. Petitioner fled the scene, but after obtaining an attorney, he voluntarily turned himself in to the police two days later. He was ultimately convicted by a jury of first degree manslaughter which is a first degree felony. He was sentenced to a term of 15 years, with credit. He was first incarcerated in October 1991.
Petitioner represented credibly that he no longer believes in guns for motorists and that if he had it to do over again, he would have handled the traffic altercation that gave rise to his manslaughter conviction in a different way. He testified, "Generally, I have learned to put my trust in the Lord," and that he had learned to forgive himself but still did not understand why he did what he did in 1991.
Petitioner was visibly upset and wept several times during his oral testimony at formal hearing.
Doctor Bilak, Ph.D., is a Florida-licensed clinical psychologist. He was tendered (by deposition) without objection as an expert in psychological evaluations and testing for emotional and mental disorders. He saw Petitioner on November 6, 1996. He interviewed Petitioner, took a history, and
administered a Minnesota Multiphasic Personality Inventory (MMPI) at a later date. Dr. Bilak saw Petitioner a total of three times. There was no evidence of major psychological problems or any psychopathological inclinations at any of the three sessions.
Dr. Bilak opined, "He has a clean bill of health psychologically." Mostly from conversation, and without I.Q. testing, Dr. Bilak concluded that Petitioner is of above average intelligence with no deterioration of his cognitive skills. The MMPI showed no significant pathology of any kind, but did show that Petitioner was suffering mild to moderate levels of psychological distress related to the licensing process. Dr.
Bilak's ultimate conclusion was that Petitioner was undergoing a "phase of life problem," either occupational or due to "transiting" (adjusting) from prison inmate to outside world.
Dr. Bilak further concluded in November 1996 that Petitioner had current good moral character sufficient to be a real estate salesman, but Dr. Bilak admittedly had no knowledge of Petitioner's reputation for fair dealing, nor of Petitioner's reputation for honesty, truthfulness, or trustworthiness.
As a result of his 1991 conviction, Petitioner served approximately two years in prison. Since then, he has completed two years of community control. He has about six and one-half years of probation remaining.
Petitioner has served all of his sentence thus far without any unfavorable incidents.
Petitioner has made restitution. He has completed the counseling required by the Department of Corrections.
Petitioner's other witnesses, without exception, attested to the Petitioner's trustworthiness, self-control, good character, and good reputation. Respondent agency presented no testimony to the contrary.
Prior to his release from prison, Martha Bryan hired Petitioner to work in her restaurant. Due to the work release program and the prior interviews connected therewith, she was aware of Petitioner's manslaughter conviction and at least some of the circumstances surrounding the killing when she hired him. In spite of that, she felt comfortable with Petitioner, even when they were alone in the restaurant at night. Petitioner proved himself completely trustworthy while employed in her restaurant for five days a week. Ms. Bryan considered his position of cook as one of trust.
Because she felt comfortable with Petitioner and was favorably impressed with his skill with computers and with his intelligence and personality, Ms. Bryan hired him to work in her title insurance office. Before doing so, she made full disclosure about Petitioner's past to her 10-13 associates and partners and received assurances from them that they also would feel comfortable with him.
Ms. Bryan's underwriters had no problem with Ms. Bryan hiring Petitioner, since Petitioner had not stolen any money.
During the approximately one and a half years that he worked in the title insurance office, Petitioner did nothing to jeopardize his parole, work release, or house arrest statuses.
He had a key to the office and opened the office before Ms. Bryan arrived most mornings. He often stayed in the office alone during the lunch hour because he was not permitted to leave the premises under the terms of his work release. Sometimes, Petitioner remained on the premises after Ms. Bryan and all the other employees had left for lunch or for the day.
Ms. Bryan has never practiced real estate, but holds an inactive real estate license. According to her, Petitioner was in constant contact with the public and real estate salespersons at the title insurance office in much the same manner as he would be if he were a real estate salesperson. Ms. Bryan habitually trusted Petitioner with confidential client files and up to two million dollars in checks. She never worried when employees or clients were alone with Petitioner. Her associates and partners had expressed to Ms. Bryan their similar confidence in Petitioner.
Petitioner worked under stressful conditions in Ms. Bryan's title business, particularly when he was assigned to the front desk dealing with customers. She never received complaints from anyone. She perceived Petitioner as working well with clients in stressful situations.
After Petitioner graduated to "house arrest," Ms. Bryan occasionally used him as a courier to the bank or the post office on occasion.
Ms. Bryan believes that Petitioner "treated the [title insurance company] job as if it were the best job in the world." She described him as "an unusual case," and stated, "I couldn't pick another Ron out of ten men." She understands his reputation in the community to be good.
Petitioner worked for Ms. Bryan from sometime in 1993 to August 1994. Thereafter, he began work in his attorney's office, but Ms. Bryan and her husband still see Petitioner during works hours and socially. They continue to hold him in high regard.
Alvin J. Baker is a communications technician with American Telephone and Telegraph. He is a deacon of his church and teaches a Sunday School class there. He knows Petitioner through church activities through a group called "Men For Social Change." He has known Petitioner since mid-1993 and has dealt with him either twice per week or weekly up until approximately eight months before formal hearing when Petitioner changed churches. He has observed no emotional or angry reactions in Petitioner, but described Petitioner as a person who is intent on asking questions until he gets answers. Although Mr. Baker was not aware of Petitioner's conviction for manslaughter until the day of formal hearing, he expressed himself as not feeling
betrayed by this lack of confidence. He described Petitioner's general reputation as "a fine and outstanding citizen."
Reverend James D. Johnson, Pastor of Trinity United Methodist Church in Lake City, Florida, knows Petitioner as one of his parishioners. He stated that, "I wish I had thirty more members like him." Through one source or another, Reverend Johnson became aware the Petitioner was on probation for manslaughter, even though Petitioner did not personally reveal this information to him. In Reverend Johnson's experience, Petitioner has always acted as a normal individual.
Reverend Johnson can depend on Petitioner to do anything he was asked to do on the Trinity church premises. Reverend Johnson and Petitioner meet every week or so in order that Petitioner can prepare and publish the Sunday Church Bulletin. Petitioner is reliable in this regard in every way. Petitioner has been provided with keys to every building and every room at the church. Petitioner has occasionally been entrusted to carry the church's money bag to the bank.
Petitioner has co-chaired a church program at Trinity.
Petitioner is trustworthy when left alone with women and children at Trinity church. The Reverend Johnson has observed Petitioner counseling with some of his parish's troubled young people about how to stay out of trouble.
In regard to Petitioner's reputation for truth and veracity and/or good moral character in the community, Reverend Johnson stated, "All I hear about Ron is good."
Joyce P. Tunsil is a retired public school teacher and a substitute teacher at the local Junior College. She has served on the local zoning board and has been an activist in the Lake City, Florida community for some period of time. She is the mother of Petitioner's attorney. She met Petitioner in 1993 at church. She later met him in her son's law office.
After working in Ms. Bryan's title insurance office, Petitioner worked for his attorney as a secretary/clerk for approximately two years, leaving for other employment in July, 1996. During most of that period of time, Ms. Tunsil was a volunteer business manager for her son. During this period of time, Ms. Tunsil observed the Petitioner being punctual, polite, conscientious, efficient, and working overtime when necessary.
In the law office, Petitioner did preparation of court documents and real estate closing statements, among other duties. Part of Petitioner's job was to do financial entries of cash and check payments into the computer and to reconcile monthly statements. Sixty percent of the time he was on his own without supervision. He proved himself trustworthy.
Petitioner was good with children and with difficult clients. Due to the nature of the law practice, certain types of clients presented very stressful situations which could have
resulted in physical altercations, however Ms. Tunsil observed that Petitioner was able to defuse these types of situations.
Petitioner told Ms. Tunsil about his criminal history. She is aware that Petitioner counsels young people and teenagers and is involved in "Men For Social Change." She believes Petitioner to be fully rehabilitated, to have a positive character, and to be able to conduct himself positively and effectively in business, home and social situations. She perceives his general reputation in the community as "positive."
At the time of formal hearing, Petitioner was a purchasing technician for the State of Florida, Department of Veteran Affairs, at the Lake City Florida Veterans' Home. He sought this employment in order to better himself, to make more money, and to build retirement security. He admitted his prior manslaughter conviction on his employment application, and his immediate supervisor is aware of his conviction.
As a purchasing technician, Petitioner deals primarily with computers, but also has access to all types of patient- members and supplies, including drugs. He has worked in this capacity successfully for some time with no unfavorable incidents.
Petitioner was trained on computers in the Air Force. He was honorably discharged in 1975. He worked with the Federal Aviation Authority as an air traffic controller while attending college. He has a degree in business, and is interested in going
back to school in order to get a Bachelor of Science degree in computer science. He wants to become a real estate sales person in order to better himself and make more money.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this proceeding, pursuant to subsection 120.57(1), Florida Statutes.
Petitioner's criminal conviction for manslaughter constitutes conviction of a crime of moral turpitude which is grounds for denial of a real estate salesperson's license. See, Section 475.25(1)(f), Florida Statutes; Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So.2d, 1056 (Fla. 5th DCA 1988).
Petitioner may likewise be denied a license, pursuant to Section 475.17, Florida Statutes, which provides, in pertinent part:
(1)(a) An applicant for licensure . . . must
. . . be honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for an active
. . . salesperson's license must be competent and qualified to make real estate transactions and conduct negotiations therefore with safety to investors and to those with whom he may undertake a relationship of trust and confidence. . .
.[I]f the applicant was 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.
The burden of proof and duty to go forward is upon Petitioner-Applicant, who must establish by a preponderance of the evidence that he is currently rehabilitated and of good moral character. See, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).
The agency asserts that because Petitioner's licensure application explanation stated that he followed the other motorist in 1991 to get his vehicle's tag number but admitted at formal hearing he also wanted to talk to the other motorist and because Petitioner omitted from the application's narrative explanation that in a prior accident when Petitioner failed to get the other vehicle's tag number law enforcement personnel had been unable to find the other motorist/vehicle, Petitioner is not of current good moral character. The agency equates the Petitioner's admission in testimony that he left a lot of detail out of his application's one page narrative explanation with Petitioner's failing to complete the application honestly under oath.
Because the Petitioner wept with remorse and frustration at the formal hearing, the agency asserts that he is unable to control himself emotionally in daily life and that he
is not wholly competent and qualified to make real estate transactions and conduct real estate negotiations with safety to others.
Admittedly, Petitioner's oral testimony at formal hearing is not wholly credible as to some of the details surrounding his 1991 commission of manslaughter, but putting the best light on explanations made in hindsight is human nature. It must be noted that Petitioner voluntarily turned himself in after the 1991 altercation and since then has never denied his felonious act or conviction. He also has complied with all incarceration and rehabilitation requirements of the criminal justice system.
Admittedly, Petitioner left out some material from the written explanation which accompanied his application to the licensing agency. Nonetheless, he did make a substantially complete disclosure of his prior felonious act and his conviction.
Petitioner has affirmatively demonstrated that since his conviction, more than five years ago, he has lived an exemplary life within his church, community, and three employment situations. All of his employment situations constitute positions of trust, and two of them have exposed Petitioner to stresses and personal interactions similar to those involved in the practice of real estate. Petitioner also has "gone the extra mile" in supplying expert psychological testimony to supplement
the observations of lay persons that he is able to deal with stressful business situations without resorting to the violence of the past.
Because Petitioner's recent exemplary life has been lived in the controlled atmosphere of work release programs and/or probation, the impact of the glowing testimonials to his good character is somewhat less than it might be otherwise, but the greater weight of the evidence of record concerning Petitioner's present state of honesty, truthfulness, and reputation for fair dealing is clearly in his favor.
Such preponderant, indeed substantial, affirmative evidence of lapse of time; of post-conviction good conduct and good moral character; of current reputation for good moral conduct, honesty and fair dealing; and of Petitioner's successful rehabilitative efforts has sustained his burden and demonstrated herein that he has the qualities of character and reputation required by Section 475.17(1)(a), and that if licensed, Petitioner will not endanger the public interest or investors in real estate.
RECOMMENDED that the Florida Real Estate Commission enter a Final Order providing that subject to successful completion of the necessary examinations, the Petitioner be granted a real estate salesperson's license.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of April, 1997.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997.
Merrill C. Tunsil, Esquire Post Office Box 2113
William N. Halpern Assistant Attorney General
Henry M. Solares, Division Director Department of Business and
Lynda L. Goodgame, General Counsel Department of Business and
All parties have the right to submit written exceptions within 15 days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.
