Findings Of Fact By application filed with respondent, Division of Real Estate (Division), on July 5, 1988, petitioner, Garth Arin Malloy, sought licensure as a real estate salesman. In response to question six an the application, petitioner acknowledged that he had been arrested in August 1984 for possession of marijuana, a felony, and burglary and sexual misconduct, both misdemeanors, and ultimately pled guilty to the felony charge of possession of marijuana and the misdemeanor charge of sexual misconduct. After reviewing the application, and securing petitioner's record of arrests, respondent issued proposed agency action in the form of a letter on October 3, 1988, denying the request on the ground petitioner was not "honest, truthful, trustworthy, and of good character" and did not "have a good reputation for fair dealing." The denial prompted petitioner to request a formal hearing. Malloy, who is twenty-eight years old, graduated from Spring Hill College in Mobile, Alabama in February 1983 with a degree in psychology. After graduation, he worked as a recreation director for a residential care facility for emotionally disturbed children in the Mobile area. In August 1984 he was arrested for possession of marijuana after police found marijuana plants growing in his backyard. The charge was a felony under Alabama law. A short time later, one of Malloy's neighbors lodged charges of sexual abuse against him for allegedly making improper advances on her thirteen year old son. A charge of second degree burglary, a felony, was added for Malloy allegedly unlawfully entering the house where the minor resided Upon advice of his attorney, Malloy accepted a negotiated plea offered by the state and pled guilty to the felony charge of possession of marijuana and to a reduced misdemeanor charge of sexual misconduct, and the state agreed to dismiss the burglary charge. After the plea was accepted, Malloy was placed on probation for five years. Except for these offenses, petitioner has never been charged with or convicted of any other crimes. Malloy accepted the above arrangement since he did not wish to go to trial and risk incarceration. He readily acknowledged the presence of marijuana plants in his back yard which he said were for his own consumption and that of some friends. However, he vigorously denied the sexual misconduct and related burglary charges and blamed them on the neighbor who he contended was mentally unstable and vindictive. Since Malloy's plea, he has been on supervised probation which is scheduled to end on January 1, 1990. Under the terms of his probation, Malloy must check in once a month, report his activities to a supervisor and attend counseling sessions. He is currently in the process of requesting an early termination of probation. Malloy left Alabama in early 1985 and worked briefly at a resort in Key West. In late 1985 he began employment with a satellite communications firm in St. Petersburg and was in charge of sales, credit and installations for three area stores. In that capacity, he handled the firm's money and was required to frequently deal with the public. After a brief stint as an assistant store manager with a Sarasota department store, Malloy worked two years as a teller for a Sarasota savings and loan institution where he handled large amounts of cash on a daily basis. It is noteworthy that the bank hired petitioner with the knowledge of his criminal background. Pending the outcome of this proceeding, Malloy is working as an office manager with a Sarasota air-conditioning firm. Malloy now wishes to enter the real estate profession and eventually specialize in appraising. Malloy's honesty, trustworthiness and good reputation were attested to by the branch manager of the bank where Malloy was employed and the owner of the business where he now works. Malloy was described as being honest, reliable and trustworthy. Both had the utmost confidence in entrusting Malloy with handling moneys. Indeed, all positions held by Malloy since 1985 have involved unsupervised responsibilities, the handling of cash and dealings with the public. As such, he has established rehabilitation. There was no evidence to contradict these findings.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Garth Arin Malloy for licensure as a real estate salesman be GRANTED. DONE and ORDERED this 23rd day of March, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5666 Petitioner: 1. Covered in finding of fact 1. 2-3. Covered in finding of fact 4. 4-6. Covered in finding of fact 2. 7. Rejected as unnecessary. 8-9. Covered in finding of fact 4. 10-11. Covered in finding of fact 3 12-13. Covered in finding of fact 4. 14. Covered in finding of fact 3. 15. Covered in finding of fact 6. 16-32. Covered in finding of fact 7. 33. Rejected as unnecessary. 34. Covered in finding of fact 5. 35. Covered in finding of fact 4. 36. Rejected as being a conclusion of law. 37-38. Covered in finding of fact 7. 39. Rejected as unnecessary. COPIES FURNISHED: Edwin M. Boyer, Esquire 2055 Wood Street, Suite 220 Sarasota, Florida 34237 Manuel E. Oliver, Esquire Room 212, 400 West Robinson Street Orlando, Florida 32801 Darlene F. Keller Director Division of Real Estate Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether petitioner should take disciplinary ace ion against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact On and after June 19, 1985, respondent Mack T. Short has been certified as a law enforcement officer, holding certificate No. 14-85-502-05. Two years ago, when, like respondent, he worked at the Florida State Prison as a correctional officer, Guy William Carstens "usually had some" (T. 84) marijuana with him. Messers. Carstens and Short "carpooled" (T. 83) to and from work in the spring of 1987. On "a couple of occasions after work," (T. 84) in April or May of that year, Mr. Short accepted Mr. Carstens's offer to share a pipe or cigarette filled with marijuana. All told, in the course of a year or so, the two men smoked marijuana together five or ten times. T. 88,92. Dale D. Farrow, another correctional officer at the Florida State Prison who bought marijuana from Mr. Carstens periodically over a year's time and regularly smoked it, grew apprehensive of finding himself "up for criminal charges possibly" (T. 80) when he learned from Mr. Carstens that an inmate had threatened to turn Mr. Carstens in, after a $10,000 marijuana transaction went sour. In fact, the inmate did report the drug deal he had with Mr. Carstens to prison authorities, but they did nothing about it. After speaking to the inmate, Mr. Farrow, who has worked at Florida State Prison as a correctional officer for more than seven years, contacted the Florida Department of Law Enforcement (FDLE), informing personnel there that Mr. Carstens "was dealing in narcotics and that several other correctional officers were buying narcotics from him and using narcotics." T. 16. FDLE passed this information on to the Inspector General's Office within the Department of Corrections. When Mr. Carstens was eventually apprehended, arresting officers found more than a pound of marijuana in the trunk of his car. At one time Mr. Carstens Stored marijuana in a shed behind the house respondent shared with his wife and small child. Mr. Short, who had made the shed available to him as storage for two bucket seats and some motorcycle parts, was apparently unaware of any marijuana in the shed. He was not home when Mr. Farrow saw Mr. Carstens unlock the shed door, enter and remove a sizable quantity of marijuana After his arrest, Mr. Carstens, who was Promised more lenient treatment if he implicated others, named respondent (among Several other correctional officers) as a drug offender. Convicted of Possession (but not distribution despite, e.g. testimony under oath in the present case that he did distribute), Mr. Carstens was placed on five years' probation. Mr. Farrow, who, like respondent, was never Prosecuted criminally, continues to work as a guard at Florida State Prison. There was no indication that Petitioner intends to take any action affecting Mr. Farrow's certification as a law enforcement officer.
Recommendation Particularly in light of the treatment Petitioner has accorded Mr. Farrow, whose moral character the evidence called at least as clearly into question as respondent's, it is RECOMMENDED: That Petitioner reprimand the respondent. DONE and ENTERED this 9th day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of November, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 88-5249 Petitioners Proposed findings of fact Nos. 1 through 7, 10, 11, 13, and 14 have been adopted, in substance, insofar as material. Petitioners Proposed findings of fact Nos. 8, 9, and 12 were not convincingly established by credible evidence. COPIES FURNISHED: Rodney W. Smith, Esquire Post Office Box 628 Alachua, FL 32615 Joseph S. White, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, FL 32302 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LAW ENFORCEMENT CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION CRIMINAL JUSTICE STANDARDS AND TRAINING COMMISSION, Petitioner, vs. DOAH CASE NO. 88-5249 CJSTC CASE NO. C-1390 MACK T. SHORT, Certificate Number 14-85-502-05. Respondent. /
Findings Of Fact Based on the evidence presented at hearing, the Hearing Officer makes the following findings of fact: Phillip S. Wong is a convicted felon. On December 6, 1982, after entering a plea of guilty, he was adjudicated guilty of one count of each of the following crimes: aggravated assault with a deadly weapon without intent to kill, in violation of Section 784.021(1)(a), Florida Statutes; false imprisonment, in violation of Section 787.02, Florida Statutes; burglary of a dwelling during which an assault was made, in violation of Section 810.02, Florida Statutes; conspiracy to commit a felony, to wit: trafficking in cocaine, in violation of Sections 777.04 and 893.135, Florida Statutes; trafficking in cocaine, in violation of Section 893.135, Florida Statutes; and possession of cocaine with the intent to sell, in violation of Section 893.13, Florida Statues. For these offenses, all of which were committed in August of 1982, Wong received five 1/ separate three-year sentences of imprisonment that ran concurrently with one another. As a prisoner, Wong's conduct was exemplary. Accordingly, in May, 1984, he was placed in a work release program. He completed serving his sentence in September, 1985. Since his return to the community, Wong has married and become a father. To help support his family, he works as a chef in a French restaurant, a position he has held for the past four and a half years. Wong is now a dedicated family man concerned about the welfare of his wife and their two and a half year old child. This concern has prompted him to seek a career in real estate so that he will be better able to provide for his family.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for licensure to practice as a real estate salesman, without prejudice to Petitioner filing a subsequent application when he is able to show that his rehabilitation is sufficiently complete to entitle him to such licensure. See Karl v. Florida Real Estate Commission, 229 So.2d 610, 611 (Fla. 3d DCA 1969)(Commission may not preclude an applicant whose application has been denied because of a prior felony conviction from reapplying for licensure and showing subsequent rehabilitation). DONE and ENTERED this 10th day of April 1989, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 10th day of April, 1989.
Findings Of Fact The parties stipulated that Richard E. Ebner was registered as a real estate salesman on March 8, 1974 and has been so registered since that date having been issued license No. 0126254, that said license was applied for by Ebner, who prepared the application, which was jointly stipulated to be received into evidence as Exhibit 1. The parties further stipulated to the fact that Exhibit 1 contains question 9, as set forth in the Administrative Complaint in paragraph 2, and question 19, as set forth in the Administrative Complaint in paragraph 6, and that Ebner had answered question 9, "Yes. . . Midsdemeanor - Marijuana possession 1971," and question 19, "No." The parties further stipulated to the admission into evidence of Exhibit 2, Court Records of Arrest dated September 25, 1970; Exhibit 3, Court Records of Information dated September 29, 1970; and Exhibit 6, Court Records, Order of Incompetency. It was stipulated that an Order of Nolle Prosequi had been entered regarding the charges upon which the arrest, Exhibit 3, were based. The Commission offered Exhibit 4, a letter of Sheriff Collier dated January 12, 1974; and Exhibit 5, a judgment in Case No. 676 dated August 17, 1971, which were received into evidence. Thereafter on the basis of the stipulation and admission of Exhibits 5 and 6, the Commission rested its case. The Respondent then moved for dismissal of the charges because the charges were insufficient because the Commission failed to show if these matters had been disclosed the license would have been denied. The Hearing Officer denied the motion. The Respondent called his father and mother to testify. Richard Ebner had had in 1970 a drug problem and had been addicted to heroin. His parents searched the state for a hospital to treat their son. Having found a hospital, they went to the County Judge and explained their fears that their son might not stay in the hospital. Without a hearing, the Judge entered the Order of Incompetency, Exhibit 6. Thereafter, their son had gone to the hospital and remained there voluntarily. They both testified that their son, Richard Ebner, had no knowledge of the Judge's Order, and that they themselves were unaware of the nature of the order beyond the fact that they had been told it was sufficient to require their son to remain in the hospital if he tried to leave. The Board subsequently presented rebuttal testimony on the issue of incompetency that Richard Ebner's counsel had interposed an insanity plea to the 1971 arrest based upon the Order of Incompetency, see Exhibit 9. The Court refused this defense. Richard Ebner testified that he had known about the insanity defense his attorney had presented to his 1971 arrest, but that he had had no knowledge in 1971 that he had been declared incompetent by any Court or when he filled out the application. The Commission's investigator indicated that the Court's record indicated only the Order of Incompetency and no further pleadings. The Hearing Officer finds that Richard Ebner had no knowledge of the Order, Exhibit 6, adjudging him incompetent. Regarding question 9, the Commission's Exhibits 2 and 3 revealed that Ebner had been arrested in 1970 for obtaining or attempting to obtain a barbiturate or central nervous system stimulant by fraud, misrepresentation, deceit or subterfuge, or by forgery or alteration of a prescription, and uttering any false or forged prescription. As stated above, it was stipulated that these charges were dropped. The Commission's Exhibits 4 and 5 reveal that Ebner was arrested on March 30, 1971 for (1) possession if marijuana and (2) possession of marijuana paraphernalia. The charge relating to possession of paraphernalia was dropped, and Ebner was tried on possession of marijuana on June 28, 1971, found guilty and sentenced to six (6) months in the county jail. He served his sentence and was released January 12, 1972. Regarding the offense, the Respondent, Ebner, had stated on his application in response to question 9, "Misdemeanor - Marijuana possession in 1971." Richard Ebner is currently working for his father and brother in their family business and actively engaged in underwater salvage and repair as a hard hat (deep sea) diver. He works as long as 3 - 10 hours under water, and has performed such responsible work as maintenance of underwater cameras at a nuclear power plant. He testified that he no longer uses narcotic drugs and that to do so would jeopardize his life in his occupation as a diver. The Respondent appeared relaxed and confident on the witness stand and answered questions put to him by the attorneys and Hearing Officer forthrightly and without hesitation. He admitted his addiction to drugs, stated that he had overcome this, that he had not tried to conceal his 1970 arrest but thought that because the charges had been dropped by this state that there was no need to report it. He similarly stated that he had responded to question 9 regarding the 1971 arrest, conviction and sentencing.
Findings Of Fact Based on the evidence presented at hearing, the Hearing Officer makes the following findings of fact: Approximately three years ago, when he was 21 years of age, Rudolpho A. Herrera ran afoul of the law. He made arrangements to have a friend obtain from another acquaintance of Herrera's between four to seven grams of cocaine. Herrera's friend received the cocaine and transported it across state lines to North Carolina where his scheme was uncovered and he was arrested. When questioned by the authorities, the friend revealed Herrera's involvement in the matter. Herrera was subsequently extradited to North Carolina and charged with conspiracy to distribute cocaine in violation of 21 U.S.C. Section 846. He pled guilty to the charge and, on September 2, 1986, was convicted in federal district court of the offense. Never before had he, nor has he since, been convicted of any crime. Because of his cooperation following his apprehension, Herrera was treated leniently by the court. He was sentenced to three years imprisonment, the first six months of which he was to spend in a community treatment center. The remainder of his three-year sentence of imprisonment was to be suspended and he was to be placed on five years probation after his release from the community treatment center. While confined to the community treatment center, Herrera was a model inmate. As a result of his exemplary behavior, he was released from the center and placed on probation two months early. During the time that Herrera has been on probation he has been a law abiding citizen. Moreover, he has complied with all of the terms and conditions of his probation. Herrera is now, and has been since the period of his confinement at the community treatment center, gainfully employed. For the past year and a half he has been employed by Five Stars Furniture Corporation as a manager of a furniture store. He is a trusted employee who has been given the keys to the store and the code to its alarm system. Herrera has been fair and honest in his dealings with his employer, his subordinates and his customers. Although his current employment situation is a positive one, Herrera wants to enter the real estate field to better himself. Charles W. Cadman, the Vice-President of Coconut Grove Realty Corporation, has expressed a willingness to assist Herrera in obtaining his real estate salesman license and to employ Herrera once he obtains his license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for licensure as a real estate salesman, without prejudice to Petitioner filing a subsequent application when he is able to show that his rehabilitation is sufficiently complete to entitle him to such licensure. See Karl v. Florida Real Estate Commission, 229 So.2d 610, 611 (Fla. 3d DCA 1969)(Commission may not preclude an applicant whose application has been denied because of a prior felony conviction from reapplying for licensure and showing subsequent rehabilitation. DONE and ENTERED this 10th day of April 1989, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 10th day of April, 1989. COPIES FURNISHED: Juan DeJesus Gonzalez, Esquire 2153 Coral Way, Suite 601 Miami, Florida 33145 Lawrence Gendzrier, Esquire Assistant Attorney General 400 West Robinson Street Suite 212 Orlando, Florida 32801 Darlene F. Keller Director, Division of Real Estate Florida Real Estate Commission Post Office Box 1900 Orlando, Florida 32802 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Defendant was at all times material herein registered with the Florida Real Estate Commission as a real estate salesman. On May 3, 1974, the Acting State Attorney filed before the Circuit Court in and for Broward County, Florida an Amended Information charging the Defendant with the offenses of the sale of unregistered securities and the sale of unregistered securities without being registered as a dealer or salesman in violation of Florida Statutes 517.02(1), 517.07, and 517.12(1). On October 11, 1973, the Defendant entered a plea of N0L0 CONTENDERE to both offenses and Judge Humes T. Lasher, Circuit Judge in and for the Seventeenth Judicial Circuit, Broward County, Florida, entered an order withholding adjudication of guilt and placed the Defendant on probation for a period of two years. See Commission's Exhibits 1 and 2. Counsel for the Commission takes the position that the Defendant's entry of a NOLO CONTENDERE plea amounts to an admission and therefore a violation of Chapter475.25(1)(a) and (e), Florida Statutes. The Defendant contrary to the position taken by the Commission, avers that no such inference should be deduced from his entry of a NOLO CONTENDERE plea. He further contends that the plea was entered only because of his wife's mental condition and the extreme hardships brought about by above cited charges, and further that he had never been found guilty or the convicted of any crime in this or any other state. In mitigation, the Defendant testified to his honorary and exemplary military service. Chapter 475,25 sets forth grounds for revocation or suspension of a registrant's license with the Florida Real Estate Commission. Subsection 1(a) thereof provides in pertinent part that a registrant's license may be suspended based upon a finding of fact showing that the registrant has: (a) Been guilty of fraud, misrepresentation, concealment, false promises etc. in this state or any other state, nation or territory. . . or (e) Been guilty of a crime against the laws of this state or any other state or of the United States involving moral turpitude, or fraudulent or dishonest dealing; and the record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of this state, shall be admissible as prime facie evidence of such guilt. On April 30, 1975, Defendant, through his attorney, filed a Motion to Terminate Probation, Adjudicating Petitioner Not Guilty and Set Him Free, which was denied by Judge Lasher on May 12, 1975. In denying said motion to terminate probation, the Judge stated that the Defendant had failed to abide by the rules set forth by the Parole and Probate Commission. No further evidence was presented respecting this motion and/or its disposition. Based on the foregoing Findings of Fact, I hereby make the following: CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. The burden of proving that a licensed real estate salesman has violated the Real Estate Licensing Law lies with the Florida Real Estate Commission or its representative. State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Florida 1973). Insufficient evidence was offered at the hearing to establish that the Defendant based on the allegations contained in Counts 1 and II of the Administrative Complaint filed herein, has engaged in conduct violative of Florida Statutes 475.25(1)(a) and (e). The conduct here alleged and claimed to be violative of the above cited statutes if proven, must rest on a showing that the Defendant has "been guilty of a crime. . ." From the evidence here presented, there was no such showing but rather there was only a showing that an order was entered withholding adjudication of guilt. In view thereof, and since there was no showing that the Defendant has "been guilty of a crime" as set forth in Chapter 475, Florida Statutes, insufficient evidence was offered to establish the allegations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Administrative Complaint filed herein be dismissed in its entirety. RECOMMENDED this 1st day of April, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Bruce I. Kamelhair, Esquire 2699 Lee Road Winter Park, Florida 32789 William B. Seidel, Esquire Justice Building 524 South Andrews Avenue Ft. Lauderdale, Florida 33301
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 475.25(1)(f), Florida Statutes, and that Respondent's real estate broker license be suspended for a period of six months. DONE and ENTERED this 12th day of November, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1982.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Florida Real Estate Commission, (Commission), was the state agency charged with the regulation of the profession of real estate in Florida and is the licensing agency for real estate salesmen and brokers. On or about April 20, 1988, the Petitioner, Christopher R. Murphy, prepared and submitted, along with the appropriate fee, to the Department of Professional Regulation, Division of Real Estate, an application for licensure as a real estate salesman. At paragraph 6 of the application form appears the question: 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? Petitioner answered, "Yes (2)" to this question and consistent with further instructions on the form, indicated: August 9, 1978, arrested Lima, Peru, Charged with Traficking [sic] in cocaine, sentenced to 24 months Oct. 4, 1985, arrested in Jacksonville Florida, Charged with conspiracy to possess & distribute, sentenced 42 mos. At the hearing, Petitioner admitted that in 1978 he was arrested for trafficking in cocaine in Lima, Peru. He was in pretrial confinement for 27 months prior to his conviction, which, he claims, did not meet with the requirements of due process. The facts of the case were that he was in Peru with a friend who was in the cocaine business. It was his companion, not him, he claims, who had cocaine in his hotel room and because Petitioner was with him there, he, too, was charged. Petitioner admits that he knew his friend was in Peru to buy cocaine and that he went with him willingly, but claims that he was not a party to the purchase nor did he own or possess any of the cocaine. He also admits that in 1985 he was convicted in Jacksonville, Florida of conspiracy to possess and distribute cocaine. He claims, however, that this conviction will be reconsidered by the court even though he admits to being guilty of the offense. There was, however, no evidence of any appeal of the conviction filed by Petitioner and his representation that his case will be reconsidered is based on his cooperation in an ongoing investigation about which he cannot speak. The fact remain that he has been convicted and the conviction still stands. Mr. Murphy was born in 1938 in Boston. In later years, his father worked as a civil engineer on the Saturn 5 project for NASA and he has lived in Florida for 30 years. He is presently a student of accounting due to graduate with a degree in education. He wants his real estate license because he is interested in real estate and in mortgage brokerage and wants to establish a family business, the prime thrust of which will be mortgage brokerage. Nonetheless, he feels a real estate license would go hand in glove with this end. Petitioner contends he disclosed everything in his application. As a result of the trial in Jacksonville, he was sentenced to three and a half years in prison. He was given credit for the 6 months pretrial confinement he spent in County Jail, served 18 months of the full term, and spent an additional 6 months in a halfway house. While in prison, he took college courses in real estate, finance, and management. By Order dated November 28, 1988, the Comptroller of the State of Florida, incorporated a Stipulation between the Department of Banking and Finance and the Petitioner which had the effect of granting Petitioner's application for a probationary mortgage broker's license, and he is currently so licensed in Florida. Mr. Murphy regrets his errors and claims he has left that part of his life behind him. He wants the license for which he has applied so that he can do something better with his life consistent with the plans mentioned previously. Kent Brink, a real estate broker in Odessa, Florida, has known Petitioner for approximately five years from the time when Petitioner first bought a piece of property through him. Since that time, he has gotten to know Petitioner socially as well and has mutual friends and business associates with him. He is aware of Petitioner's reputation for honesty, truthfulness, trustworthiness, and his reputation for good character within the community and it is good in all respects. He is aware of Petitioner's convictions and what they are for, and in spite of that, trusts him and would hire him if he were licensed. He would have no problem trusting his own reputation and the welfare of his clients with the Petitioner. Steven G. Burgess, the sales manager for Keystone Real Estate in Holiday, Florida, met the Petitioner about a year and a half ago and is aware of Petitioner's criminal record. Since their meeting, however, he has had numerous business dealings with the Petitioner and has found him to be reliable. He has had no problem trusting Petitioner and has found him to be totally honest. Petitioner's reputation for honesty, truthfulness, and good character in the community, as he knows it, is good. Sheryl Howard, a builder in Brooksville, Florida, has known Petitioner for approximately one year, having met him through a real estate transaction Petitioner had with her father. Petitioner came to work for her and her father in the building business. He was hired to work with punch lists and to run errands and in that capacity, he had to be trusted. He was given a key to the office without problem, and always accomplished the job requested of him, going beyond that which was required. She is aware of Petitioner's criminal record because he made it known to her. Nonetheless, if he is licensed, she would be happy to have him work for her and would trust him with access to her escrow account and her funds. Petitioner demonstrated exceptionally poor judgement as well as criminality in his involvement in the two offenses of which he was convicted. Even conceding that the lack of due process during his Peruvian conviction, he admitted he was there in the company of his friend who he knew was involved in an unlawful activity. Nonetheless, for the purpose of argument, disregarding that conviction, he also admits his involvement in and guilt of the cocaine offense in Jacksonville. There is no doubt that drug offenses are egregious and nefarious and his involvement therein indicates a complete disregard not only for the laws of this state and country, but for the welfare of his fellow citizens, the same group which would serve as potential clients were he to be licensed. Nonetheless, it would appear from the evidence presented by Petitioner and unrebutted by Respondent that he has changed and has been rehabilitated. The evidence shows he has been tested in the community since his release from prison, and has passed the test. He has shown evidence of an attempt to better himself through education and employment and has satisfied those for and with whom he worked that he can be trusted. It is found, therefore, that he has been rehabilitated and no longer presents a threat or danger to the interests of the public and investors with whom he is likely to come into contact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Christopher R. Murphy, be deemed eligible to sit for examination for licensure as a real estate salesman in Florida. RECOMMENDED this 22nd day of February, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK 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 February, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4439 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner: 1. & 2. Accepted and incorporated herein 3. & 4. Accepted as a reflection of the evidence Accepted and incorporated herein Accepted as a comment on the evidence Accepted and incorporated herein & 9. Accepted and incorporated herein By the Respondent: 1. - 4. Accepted and incorporated herein COPIES FURNISHED: Ralph C. Stoddard, Esquire 132 Lithia Pinecrest Road Brandon, Florida 33511 Lawrence S. Gendzier, Esquire Assistant Attorney General Suite 212 400 West Robinson Orlando, Florida 32801 Darlene F. Keller Executive Director DPR, Division of Real Estate Post Office Box 1900 Orlando, Florida 32801
Findings Of Fact Joseph Pine is a registered real estate salesman holding license certificate number 0131432 and was so registered on December 6, 1976. Joseph Pine entered a plea of guilty to the possession of a controlled substance, cannabis, over five (5) grams. The court withheld adjudication and placed Pine on supervised probation for three (3) years because Pine was living in Quba, Netherlands Antilles. The possession of a controlled substance, cannabis, is a violation of Section 893.13(1)(a)2., Florida Statutes. This is a felony of the third degree.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends the case be dismissed and no action be taken. DONE and ORDERED this 7th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of November, 1977. COPIES FURNISHED: Manuel E. Oliver, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Harry L. Garber, Esquire Garber & Buoniconti, P.A. 1040 City National Bank Building 25 West Flagler Street Miami, Florida 33130
Findings Of Fact On November 18, 1976, the Real Estate Commission received respondent's application for registration as a real estate salesman. In answering the sixth question on the application form, respondent indicated that he had never been arrested for any offense. In fact, respondent was arrested for driving while intoxicated in Ft. Lauderdale and was convicted of this offense in municipal court on September 22, 1960. On April 3, 1962, he was convicted in municipal court of assault and battery on the person of Jill Boyd an offense for which he was arrested in Ft. Lauderdale on March 27, 1962. He was arrested a second time for driving while intoxicated in Ft. Lauderdale and was convicted of this offense in municipal court on February 28, 1967. On still other occasions, respondent was arrested for public intoxication and for traffic offenses. Before submitting his application for registration as a real estate salesman, respondent enrolled at the Florida Real Estate Academy for a five day crash course. An instructor told his class that the Real Estate Commission checked only five years back for arrests.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's real estate salesman's license with leave to respondent to file a proper application. DONE and ENTERED this 6th day of December, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Louis B. Guttmannp, III, Esquire Florida Real Estate Commission 2699 Lee Road Winter Park, Florida 32789 Mr. Michael Diamond Post Office Box 9206 Ft. Lauderdale, Florida 33310
