The Issue 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?
Findings Of Fact 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.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is 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 Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1997. COPIES FURNISHED: Merrill C. Tunsil, Esquire Post Office Box 2113 Lake City, Florida 32056-2113 William N. Halpern Assistant Attorney General 400 West Robinson Street Suite 107 South Tower Orlando, Florida 32801 Henry M. Solares, Division Director Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Northwood Centre Tallahassee, Florida 32399-0792
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Edward T. Bauer, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Respondent’s Notice of Withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Autocar, LLC, and K.V.P. Enterprises, Inc. d/b/a Expert Diesel to sell trucks manufactured by Autocar, LLC, (AUTC) at 4700 Oakes Road, Fort Lauderdale (Broward County), Florida 33314. DONE AND ORDERED this Ard. day of May, 2012, in Tallahassee, Leon County, Florida. y rom a CL altace “~Ffilie Baker, Chief Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed in the official records of the Division of Motorist Services this ard day of May, 2012. Nalini Vinayak, Dealer Wicense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jde Copies furnished: Edward Quinton, Esquire Adams, Quinton, and Paretti, P.A. Brickell Bayview Center 80 Southwest 3” Street, Suite 2150 Miami, Florida 33130 Karen Putter K.V.P. Enterprises, Inc. 681 Northwest 108" Avenue Plantation, Florida 33324 Bernard M. Schulte Autocar, LLC 551 South Washington Street Hagerstown, Indiana 47346 Dean Bunch, Esquire Nelson, Mullins, Riley, And Scarborough, LLP Suite 200 3600 Maclay Boulevard, South Tallahassee, Florida 32312 Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator
