04-000866 Arthur Gordon Haller vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Tuesday, July 20, 2004.

Summary: Petitioner demonstrated that he was rehabilitated and had good character since his disqualifying offense in 1997. Recommend that Petitioner`s application for a real estate instructor license be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR GORDON HALLER, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0866

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA REAL ESTATE )

COMMISSION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

P ursuant to notice, this matter was heard on May 13, 2004,

before the Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, in Gainesville,

Florida.

APPEARANCES

For Petitioner: Arthur Gordon Haller, pro se

3607 Northwest 52nd Avenue

Gainesville, Florida 32605 - 1057

For Respondent: Jason W. Holtz, Esquire

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801 - 1757

STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for licensure

as a real estate instructor should be approved.

PRELIMINARY STATEMENT

This matter began on November 21, 2003, when Responden t,

Department of Business and Professional Regulation (Department),

Florida Real Estate Commission (Commission), issued an Order

denying an application of Petitioner, Arthur Gordon Haller, for

licensure as a real estate instructor "based on the applicant's

criminal record and answer to the question regarding the

discipline of a professional license." On December 15, 2003,

the Commission issued a Corrected Order indicating that the

denial was based on "the applicant's answer to the question

regarding the di scipline of the license." Petitioner then

requested an informal hearing before the Commission, which was

conducted on February 18, 2004. On February 23, 2004, the

Commission issued an Order again denying the application "based

on the applicant's record a nd the answer to the question

regarding a professional license being disciplined."

On February 28, 2004, Petitioner requested a formal hearing

to contest the agency's proposed action. The matter was

referred by Respondent to the Division of Administrati ve

Hearings on March 15, 2004, with a request that an

Administrative Law Judge be assigned to conduct a formal

hearing. By Notice of Hearing dated March 25, 2004, a final

hearing was scheduled on May 13, 2004, in Gainesville, Florida.

On May 11, 2004, t he case was transferred from Administrative

Law Judge P. Michael Ruff to the undersigned.

At the final hearing, Petitioner testified on his own

behalf and presented the testimony of Saul Silver, Reeves H.

Byrd, II, Bernard Reller, and Florence F. Vendeland . Also, he

offered Petitioner's Composite Exhibits 1 and 2, which were

received in evidence. The Commission offered Respondent's

Exhibits 1 - 11, which were received in evidence. Finally, the

undersigned granted the Commission's request to take official

r ecognition of Chapters 120, 455, and 475, Florida Statutes

(2003), 1 and Florida Administrative Code Chapters 61J2 - 1 through

61J2 - 26.

The Transcript of the hearing was filed on June 4, 2004.

By agreement of the parties, the time for filing proposed

findi ngs of fact and conclusions of law was extended to July 14,

2004. The same were timely filed by the parties, and they have

been considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, th e following findings of

fact are determined:

1. Mr. Haller is a highly educated individual, having

received two undergraduate degrees, two master degrees, and a

law degree from the University of Florida. He is licensed as a

real estate broker, having r eceived his license in 1978; is a

licensed commercial pilot (and a current member of the Civil Air

Patrol); and is certified by the State as a teacher in the areas

of chemistry, mathematics, general science, and exceptional

student education. Also, Mr. Ha ller was just accepted for

admission to the University of North Florida in the Master of

Science in Computer and Information Sciences program for the

2004 summer term.

2. Mr. Haller was licensed as a member of The Florida Bar

in 1982 and for a number of years maintained a law practice as a

sole practitioner in Gainesville, Florida. Much of his work

involved real estate transactions. Around 1996, however, he

suffered a nervous breakdown, which resulted in his

hospitalization. During that illness, he wa s unable to attend

to client matters, which resulted in several complaints being

filed against him by former clients, and led to the filing of

charges by The Florida Bar. (However, no criminal charges arose

out of these complaints, and the clients never p ursued the

matter in civil court.) Pending the outcome of the disciplinary

matter, he was placed on The Florida Bar's inactive list on

December 26, 1996.

3. Because of his fragile state of health, rather than

contesting the charges, Mr. Haller chose to voluntarily resign

from The Florida Bar on June 19, 1997, with leave to seek

readmission after five years, effective nunc pro tunc

(retroactive) to December 26, 1996. He has not yet applied for

readmission but says he intends to do so. Since The Florida Bar

matter, and with the exception of the corollary matter described

in Finding of Fact 4, there have been no other blemishes on

Mr. Haller's record in any respect.

4. Based on The Florida Bar's action, on July 9, 1998, the

Department filed an Administ rative Complaint against Mr. Haller,

as a real estate broker, charging him with having had a

registration suspended, revoked, or otherwise acted against in

violation of Section 475.25(1)(s), Florida Statutes (1997).

(The record shows that the Department a nd Commission had a

complete record of all allegations pending against Mr. Haller

when he resigned from The Florida Bar.) On October 14, 1998,

and after an informal hearing in which he admitted the

allegations of fact, the Commission entered a Final Order

suspending Mr. Haller's real estate license for three months and

requiring that he reimburse the Commission in the amount of

$240.00 for investigative costs. The license was subsequently

reinstated after the suspension time had expired and remains in

goo d standing at this time.

5. Mr. Haller is currently employed as a chemistry teacher

for the Duval County School District. He is also a mathematics

instructor at Florida Community College in Jacksonville. In

July 2003, he was offered a position as a re al estate instructor

at the Watson School of Real Estate in Jacksonville, Florida.

He has been offered a similar position at Florida Community

College.

6. In order to be employed as an instructor, Mr. Haller

needed to secure a real estate instructor's li cense from the

Commission. To that end, he filed an application with the

Commission on September 15, 2003. However, it was denied by the

Commission on the ground that his law "registration" had been

disciplined by the Florida Bar in 1997. It is fair to infer

from the Transcript of the Commission's meeting on February 18,

2004, that the Commission did not believe that Mr. Haller was

completely candid when he responded to an inquiry regarding the

circumstances surrounding his resignation from The Florida B ar.

The Commission's denial triggered the filing of the request for

a hearing.

7. As clarified by the parties at the hearing, in order to

become licensed, Mr. Haller must demonstrate that he is now

qualified for licensure "because of lapse of time and su bsequent

good conduct and reputation, or other reason deemed sufficient,"

so that it affirmatively appears that the "public and investors

will not likely be endangered by the granting of the

registration." § 475.17(1)(a), Fla. Stat. In other words,

Mr. Haller must demonstrate that since his resignation from The

Florida Bar in mid - 1997 (which is the disqualifying offense),

his conduct and reputation have been such that it is unlikely

that if he is licensed as a real estate instructor, the public

and inve stors will be endangered.

8. Mr. Haller has been, and is now, employed as a public

school teacher in Duval County, as well as in the community

college system. In these positions, he is entrusted to teach

and interact with students on a daily basis. A letter from one

of his supervisors corroborates Mr. Haller's testimony that he

is performing those tasks in a reputable and competent manner.

In addition, Mr. Haller currently holds an active real estate

broker's license, which allows him to conduct trans actions on

behalf of investors and members of the public. There is no

evidence in the record that he is a threat to investors or the

public in his role as a real estate broker. Indeed, the

evidence shows that he is not. If the instructor's license is

is sued, instead of dealing with investors and members of the

public in a broker's capacity, Mr. Haller will be teaching

applicants who are seeking a real estate license.

9. Testimony by an active investor who has been involved

in at least 2,000 real estat e transactions in the Alachua County

area over the last 30 years or so, some handled by Mr. Haller,

established that Mr. Haller is a "veteran of real estate

transactions" since the 1970s, and that his honesty and

integrity since his resignation from The Fl orida Bar have not

been questioned.

10. A member of the Endowment Board for Santa Fe Junior

College, which has raised almost $30 million for the college,

and who is a long - time realtor, further established that

Mr. Haller possesses the humility, ed ucation, and character

necessary to be a good real estate instructor.

11. Another witness testified that he would have no

hesitation in using Mr. Haller for a real estate transaction.

Finally, a retired certified public accountant who is now

employed b y the University of Florida testified that Mr. Haller

possesses the character, intelligence, and experience to be

licensed as an instructor and would be an asset to the

profession.

12. The foregoing evidence supports a finding that

Mr. Haller has s ufficiently rehabilitated himself since his

resignation from The Florida Bar through meaningful employment

in the public and community college school systems, and that he

will pose no threat to the public or investors as a real estate

instructor. The evid ence further supports a finding that

Mr. Haller enjoys a good reputation in the community, and that

his conduct since mid - 1997 has been good. Because the statutory

criteria have been satisfied, the application should be

approved.

CONCLUSIONS OF LAW

1 3. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

14. As the party seeking a license, Petitioner bears the

burden of proving his enti tlement to licensure by a

preponderance of the evidence. See , e.g ., Dep't of Banking and

Finance, Div. of Securities and Investor Protection v. Osborne

Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996). The hearing to

prove entitlement is de novo in nature an d is not a review of

the informal hearing previously conducted by the Commission in

February 2004.

15. Section 475.451(2), Florida Statutes, provides in part

that "[a]n applicant for a permit . . . to be an instructor for

a proprietary real estate school or a state institution must

meet the qualifications for practice set forth in s. 475.17(1)."

16. Section 475.17(1)(a), Florida Statutes, provides in

pertinent part as follows:

If the applicant has been denied

registration or a license or has been

disbar red, or the applicant's registration

or license to practice or conduct any

regulated profession, business, or vocation

has been revoked or suspended, by this or

any other state, any nation, or any

possession or district of the United States,

or any court o r lawful agency thereof,

because of any conduct or practices which

would have warranted a like result under

this chapter, or if the applicant has been

guilty of conduct or practices in this state

or elsewhere which would have been grounds

for revoking or s uspending 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 app ears to the commission

that the interest of the public and

investors will not likely be endangered by

the granting of registration . (Emphasis

added).

17. There is no question that Mr. Haller is qualified by

reason of education, experience, and training to provide real

estate instruction to potential real estate licensees, given his

lengthy background as a broker, real estate attorney, and

teacher. The only issue concerns Mr. Haller's rehabilitation

and subsequent good conduct since resigning from The Fl orida Bar

in mid - 1997.

18. As to this issue, the more persuasive evidence

supports a conclusion that Mr. Haller has satisfied the

requirements for rehabilitation under the criteria outlined in

the statute above. More specifically, the previously found

facts establish that his reputation in the community is good;

that except for the 3 - month suspension of his real estate

license in 1998, which arose out of his Florida Bar resignation,

he has had no blemishes on his record for the last seven years;

that he has conducted his life in an exemplary manner since that

time; that he has maintained other state and federal licenses in

good standing; and that members of the public and investors will

not likely be endangered by the granting of the real estate

instruct or's permit.

19. At the same time, it is noted that Mr. Haller is an

active real estate broker. Section 475.17(1)(a), Florida

Statutes, provides that in order to be licensed as a real estate

broker, one "must be competent and qualified to make real est ate

transactions and conduct negotiations therefore with safety to

investors and to those with whom the applicant may undertake a

relationship of trust and confidence." If Mr. Haller is now

entrusted as a broker to engage in real estate transactions and

c onduct negotiations with members of the public and investors,

it follows that he poses no threat to those persons who are

seeking real estate licenses and will receive instruction from

Mr. Haller.

20. Because Petitioner has satisfied all criteria in

Sect ion 475.17(1)(a), Florida Statutes, for licensure, his

application should be approved.

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 granting Pe titioner's application for licensure as a

real estate instructor.

DONE AND ENTERED this 20th day of July, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative La w 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 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of July, 2004.

ENDNOTE

1/ Except where otherwise noted, all references are to Florida

Statutes (2003).

COPIES FURNISHED:

Juana C. Watkins, Acting Director

Division of Real Estate

400 West Robinson Street

Orlando, Florida 3280 1 - 1757

Arthur Gordon Haller

3607 Northwest 52nd Avenue

Gainesville, Florida 32605 - 1057

Jason W. Holtz, Esquire

Division of Real Estate

400 West Robinson Street, Suite N - 801

Orlando, Florida 32801 - 1757

Carlos L. Valdes, Chairman

Florida Real Estate Com mission

400 West Robinson Street, Suite 901

Orlando, Florida 32801 - 1757

Leon M. Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

NOTICE OF RIGHT T O SUBMIT EXCEPTIONS

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

render a final order in this matter.