STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD FORSYTHE,

Petitioner,

vs.

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Respondent.

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) Case No. 03-0176

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on March 13, 2003, in Orlando, Florida.

APPEARANCES

For Petitioner: Richard Forsythe, pro se

7445 Crooked Lake Circle Orlando, Florida 32818

For Respondent: Sven Smith, Esquire

Department of Business and Professional Regulation

400 West Robinson Street Suite N802

Orlando, Florida 32801-1772 STATEMENT OF THE ISSUE

Should Petitioner's Application for Licensure as a real estate salesperson be granted after answering positive to question regarding convictions?

PRELIMINARY STATEMENT

On July 2, 2002, Petitioner filed an Application for Licensure as a real estate salesperson with the Department of Business and Professional Regulation (Department). Petitioner, in answer to the question in the application regarding convictions, answered in the positive. Petitioner's application to take the Florida Real Estate Licensure Examination was denied on the basis that in answer to the question in the application regarding convictions he answered in the positive. Petitioner requested, and was granted, the opportunity to appear before the Florida Real Estate Commission (Commission) informally on September 8, 2002, and again on November 20, 2002. On both occasions, by Order dated September 19, 2002, and December 4, 2002, the Commission denied Petitioner the relief he sought on the basis that Petitioner's convictions dealt with matters closely related to the business of real estate and there had not been a sufficient lapse of time since the last conviction to assure the Commission that there was not a pattern to Petitioner's illegal behavior, which could result in Petitioner repeating the illegal behavior. However, the Commission provided in its Order that Petitioner could request a formal hearing in the matter.

Petitioner requested a formal hearing on the matter and by letter dated January 17, 2003, the matter was referred to the

Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioner testified in his own behalf but presented no other witnesses or any documentary evidence. The Department presented no witnesses. Department's Exhibits 1 through 5 were admitted in evidence.

A Transcript of this proceeding was filed with the Division on March 27, 2003. The Department timely filed its Proposed Recommended Order. Petitioner elected not to file a proposed

recommended order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. On July 2, 2002, Petitioner filed an application with the Department to take the Florida Real Estate Licensure Examination to be licensed as a salesperson in the State of Florida.

2. Petitioner, in answer to the question in the application regarding prior convictions, answered in the positive. As an explanation Petitioner advised the Department of the following prior convictions: (a) On July 7, 1990, he committed the offense of forgery, non-sufficient funds,

   receiving stolen property, and grand theft by writing fraudulent checks, making a false financial statement and receiving stolen property; (b) On June 30, 1992, he committed the offense of forgery and receiving stolen property by passing forged checks;

   (c) On October 5, 1994, he was arrested for passing forged checks but the charges were dropped; and (d) On October 10, 1998, he committed the offense of possession of counterfeit securities by having in his possession counterfeit securities and possession of an identification document produced without lawful authority.

3. On the first offense, Petitioner was sentenced to 285 days in the county jail and placed on 36 months probation. Petitioner did not violate his probation. All sanctions imposed for this offense have been satisfied.

4. On the second offense, Petitioner was sentenced to two days in jail and completed the required program related to this offense. All sanctions imposed for this offense have been satisfied.

5. On the third offense, the charges were dropped.

   
   

6. On the fourth offense, Petitioner served a term of one year and one day in prison and was placed on two years probation. Petitioner did not violate his probation. All sanctions imposed for this offense have been satisfied.

7. There is no record of any further involvement in any illegal activity since the 1998 offense.

8. Petitioner is presently married to Patricia Forsythe, having been married since January 2001.

9. Petitioner and his wife have an accounts receivable collection agency for which they are licensed by the Florida Department of Banking and Finance.

10. Petitioner has an employing real estate broker, Roy Ballard, provided Petitioner becomes licensed as real estate salesperson.

11. Based on Petitioner's positive answer to the application question regarding prior convictions, Petitioner was denied the opportunity to take the Florida Real Estate Licensure Examination for licensure as a real estate salesperson.

12. Subsequently, Petitioner petitioned the Commission to consider his application denial.

13. On September 18, 2002, the Commission considered Petitioner's application but denied him any relief on the basis that the prior convictions were closely related to the real estate business and indicated a pattern of wrong doing for which there had not been a sufficient lapse of time from the last offenses to indicate that such wrong doing would not occur again.

14. By Order dated September 18, 2002, the Commission denied Petitioner's application for licensure as a real estate salesperson but provided for Petitioner to request an informal hearing before the Commission to present evidence as to his qualifications.

15. On November 20, 2002, the Commission heard Petitioner's request for licensure as a real estate salesperson. Again the Commission denied Petitioner's request for licensure on the same basis as it had denied his request at the

    September 18, 2002, hearing but provided that Petitioner could request a formal hearing before the Division to present evidence as to his qualifications for licensure.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Subsection 120.57(1), Florida Statutes.

17. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). Therefore, the burden of proof is on Petitioner to show by a preponderance of the evidence that he meets the qualifications set out in

    Section 475.17(1)(a), Florida Statutes, to become licensed as a real estate salesperson in the State of Florida.

18. In pertinent part, Section 475.17(1)(a), Florida Statutes, provides as follows:

An applicant for an active broker's license or 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 the applicant 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 her or 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. . . .

(Emphasis furnished)

Petitioner has failed to present sufficient evidence to establish facts to show that due to lapse of time and Petitioner's subsequent good behavior that the interest of the public and investors would not be endangered by the Commission approving Petitioner licensure as a real estate salesperson.

Therefore, Petitioner has failed to meet his burden to show hat he meets the qualifications to be licensed as a real estate salesperson.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it recommended that the Commission enter a final order denying Petitioner's licensure as a real estate salesperson.

DONE AND ENTERED this 8th of April, 2003, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2003.

COPIES FURNISHED:

Richard Forsythe

7445 Crooked Lake Circle Orlando, Florida 32818

Sven Smith, Esquire Department of Business and

Professional Regulation

400 West Robinson Street Suite N802

Orlando, Florida 32801-1772

Buddy Johnson, Director Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Suite N802 Orlando, Florida 32801

Nancy P. Campiglia, Chief Attorney Division of Real Estate Department of Business and

Professional Regulation

400 West Robinson Street, Suite N802 Orlando, Florida 32801

Hardy L. Roberts, III, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit 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.

Docket for Case No: 03-000176

Orders for Case No: 03-000176