82-000453 James E. Bettis vs. Florida Real Estate Commission Status: Closed Recommended Order on Monday, September 20, 1982.

Summary: Respondent denied Petitioner's application because of felony conviction and failure to list all arrests on application. Recommended Order: deny Petitioner failed in burden of proof to show entitlement to license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES E. BETTIS, )

)

Petitioner, )

)

vs. ) CASE NO. 82-453

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida, before the

Division of Administrative Hearings, by its duly designated Hearing Officer,

Robert T. Benton II, on August 10, 1982.

APPEARANCES

For Petitioner: James E. Bettis, pro se

For Respondent: Lawrence S. Gendzier, Esquire

400 West Robinson Street, Room 212

Orlando, Florida 32801

After petitioner applied for licensure as a real estate salesman,

respondent advised him, by letter dated December 17, 1981, of its intended

denial "based on your answer to question six of the licensing application and

your criminal record according to the appropriate law enforcement agency,"

citing "Section 475.17 and Section 475.25, Florida Statutes." Section

475.17(1), Florida Statutes (1981), requires that applicants be "honest,

truthful, trustworthy, and of good character, and . . . have a good reputation

for fair dealing." Petitioner requested a hearing, and the matter was referred

to the Division of Administrative Hearings. See Section 120.57(1)(b)(3),

Florida Statutes (1981).

FINDINGS OF FACT

1. Petitioner was arrested in 1969 for issuing a worthless check. He has

also been arrested for armed robbery, for conspiracy to commit grand larceny,

and for interstate transportation of a stolen boat. His only conviction came

after trial on the interstate transportation of stolen goods charges. As a

result of that conviction, he was sentenced to prison. In 1973, after serving

two and one-half years, he was released and placed on probation.

A NEW LEAF

2. The month after he left prison, he began working for the Atlantic

Sprinkler Company in Norfolk, Virginia. Petitioner has been employed

continuously since. He left Norfolk to take a job with the Virginia Sprinkler

Company in Richmond. In 1975, Mr. Bettis moved to Miami. He worked for Firepak

as a salaried employee for three years, then began installing fire sprinkler

systems as a subcontractor for Firepak and at least one other company, the

business in which he was engaged at the time of hearing.

3. In 1976, petitioner remarried. He and Sheridan Lee Bettis adopted one

daughter and another daughter was born to them. They own their own home and

some farmland in Georgia. Since his release from prison, petitioner has not had

so much as a parking ticket. Petitioner has done nothing hurtful or wrong to

his wife's knowledge since 1974.

QUESTION SIX

4. Petitioner's application was not offered as an exhibit by either party.

At one point during cross-examination, respondent's counsel read what he

represented to be question six and petitioner's answer into the record, without

objection or correction by petitioner, but counsel's representations do not

constitute evidence. Nevertheless, although somewhat garbled on the point, 1/

the evidence as a whole (T. 15-17) reflects petitioner's failure to disclose all

of his arrests on his application. He explained that he "was under the

impression that what [was] wanted was something I had been convicted of." (T.

17.) Petitioner has finished two years of college.

PROPOSED FINDINGS CONSIDERED

5. Petitioner made a post-hearing submission, and respondent filed a

proposed recommended order. To the extent proposed findings of fact have not

been adopted, they have been rejected as immaterial or unsupported by the

evidence adduced at hearing.

CONCLUSIONS OF LAW

6. An applicant for licensure as a real estate salesman like petitioner

must "be 18 years of age, a bona fide resident of the state, honest, truthful,

trustworthy, and of good character and shall have a good reputation for fair

dealing." Section 475.17, Florida Statutes (1981). The law also provides:

[I]f the applicant has been guilty of

conduct or practices in this state or

elsewhere which would have been grounds

for . . . chapter [475] 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 shall appear

to the board that the interest of the

public and investors will not likely be

endangered by the granting of registra-

tion. Section 475.17, Florida Statutes

(1981)

Among the grounds for revocation or suspension of a real estate salesman's

license or for denial of applications for licensure is having "[b] een found

guilty . . . of a crime against the laws of the United States, which crime . . .

involves moral turpitude or fraudulent or dishonest dealing." Section

475.25(1)(f), Florida Statutes (1981).

7. When a licensing agency like respondent has timely "set forth in

writing the grounds or basis for [proposed] denial of a license," Rule 28-

6.08(2), Florida Administrative Code; see Section 120.60(2), Florida Statutes

(1979), "unless otherwise provided by law the applicant shall have the burden of

establishing entitlement," Rule 28-6.08(3), Florida Administrative Code, by

demonstrating the invalidity of the grounds for denial stated by the licensing

agency. See Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778

(Fla. 1st DCA 1981); Zemour, Inc. v. State Division of Beverage, 347 So.2d 1102

(Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted

by the applicant" at 1103); see generally Balino v. Department of Health and

Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

8. Since the evidence showed that petitioner has been found guilty of a

federal offense involving moral turpitude, it was incumbent on him to show a

sufficient lapse of time and "subsequent good conduct and reputation," Section

475.17, Florida Statutes (1981), inasmuch as petitioner advanced no "other

reason" within the meaning of the statute. In addition, respondent called

petitioner's honesty into question for failure to disclose all of his arrests in

response to question six on the application, so that petitioner also had the

burden to prove his honesty, trustworthiness, good character, and good

reputation for fair dealing. In this connection, respondent has cited Rule 2IV-

2.27(2)(c) Florida Administrative Code, in its proposed recommended order, but

there was no prior mention of the rule. See Poirier v. Department of Health and

Rehabilitative Services, 351 So.2d 50 (Fla. 1st DCA 1977).

9. The evidence petitioner adduced consisted solely of his own testimony

and that of his wife. There was no testimony as to his reputation either for

fair dealing or otherwise. Notwithstanding the apparently exemplary life

petitioner has led since prison, this testimony, uncorroborated by a single

disinterested witness, is legally insufficient to meet petitioner's burden of

proof.

RECOMMENDATION

Upon consideration of the foregoing, it is

RECOMMENDED:

That respondent deny petitioner's application for licensure as a real

estate salesman.

DONE AND ENTERED this 20th day of September, 1982, in Tallahassee, Florida.

___________________________________

ROBERT T. BENTON II

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

FILED with the Clerk of the

Division of Administrative Hearings

this 20th day of September, 1982.

ENDNOTE

1/ The "question six" referred to on page 7 of the transcript is apparently a

reference to interrogatories.

COPIES FURNISHED:

James E. Bettis

730 Southwest 55 Avenue

Margate, Florida 33068

Lawrence S. Gendzier, Esquire

Department of Legal Affairs

400 West Robinson Street, Room 212

Orlando, Florida 32801

Samuel R. Shorstein, Secretary

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

Carlos B. Stafford, Executive Director

Florida Real Estate Commission

Post Office Box 1900

Orlando, Florida 32802