83-000802 Leo P. Baumgartner vs. Florida Real Estate Commission Status: Closed Recommended Order on Monday, August 27, 1984.

Summary: All Petitioner's convictions involve other people's money, so he should not be allowed to sit for the Real Estate exam.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEO P. BAUMGARTNER )

)

Petitioner, )

)

vs. ) CASE NO. 83-0802

)

DEPARTMENT OF PROFESSIONAL )

REGULATION, FLORIDA REAL )

ESTATE COMMISSION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer from the Division of Administrative Hearings, on May 1, 1984, in

Miami, Florida.

Petitioner Leo P. Baumgartner was represented by Mildred Smith Brown,

Esquire of Miami, Florida, and Ralph Armstead, Esquire of Orlando, Florida,

represented Respondent, Department of Professional Regulation, Florida Real

Estate Commission.

By letter dated February 18, 1983, Respondent advised Petitioner that it

was denying his application for licensure as a real estate salesman, and

Petitioner timely requested a Formal Hearing on that determination.

Accordingly, the issue herein is whether Petitioner's application for licensure

should be approved.

The Petitioner testified on his own behalf, and Petitioner's Exhibits

numbered one and two were admitted in evidence. Additionally, Respondent's

Exhibit numbered one was admitted in evidence.

Only the Respondent submitted post hearing findings of fact in the form of

a Proposed recommended Order. To the extent that any findings of fact have not

been adopted in this Recommended Order, they have been rejected as being

irrelevant to the issues under consideration herein, as being unsupported by the

evidence, or as constituting unsupported argument of counsel or conclusions of

law.

FINDINGS OF FACT

1. When Petitioner applied to take the Florida Real Estate Salesman's

Licensure Examination in approximately 1971 or 1972, it was discovered that

criminal charges were still pending against Petitioner as a result of a check

which had "bounced" in 1962, or 1963. He therefore made restitution on that

check, even though the charges had been pending for almost ten years, and

Petitioner was allowed to take the licensure examination. He failed to achieve

a passing score.

2. Petitioner did not immediately attempt to sit for the licensure

examination a second time but rather simply continued operating his retail

florist business. In 1976 he had a dispute with an intermittent employee who

had just left Petitioner's employment and started working for one of

Petitioner's competitors. When an insurance/salary reimbursement check made

payable to petitioner's florist shop and that employee arrived, Petitioner

endorsed the names of both payees and cashed the check. Charges arising from

that $46.00 check were dismissed after Petitioner had been arrested and had made

restitution.

3. For approximately three years before her death in 1973, Petitioner and

his wife "cared for" his mother-in-law who was in a nursing home. During that

time her only source of income was her Social Security checks, and Petitioner

had a power of attorney to sign her name and cash her checks. After her death

the checks continued to come although Petitioner called and wrote the Social

Security Office. He started collecting them and storing them in a box. In 1975

his florist business encountered financial difficulties, and Petitioner signed

his name and his deceased mother-in-law's name to the checks he had been

collecting and cashed them. He was subsequently arrested by the F.B.I. and

charged with 46 counts of uttering forged U.Seasury checks, one count for

each check. On December 12, 1977, Petitioner plead guilty and was found guilty.

He was committed to some type of work release program on one count. As to

counts two through 46, sentence was withheld and he was placed on probation for

a period of three years with the additional condition that restitution be made.

Petitioner did make restitution.

4. Toward the end of 1982 Petitioner realized that his educational credits

would soon expire and he again wished to apply to take the Real Estate Licensure

Examination. Where questioned on his application whether he had ever been

arrested or charged with any offenses, Petitioner responded in the affirmative

and listed the 1963 bad check which was paid, the "1977" check which was paid,

and a 1978 three year probation with restitution. Based upon that information,

Respondent denied Petitioner's application to take the licensure examination.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction over the

subject matter hereof and the parties hereto. Section 120.57(1), Florida

Statutes.

6. In denying Petitioner's application for licensure, Respondent relied

upon Sections 475.17 and 475.25, Florida Statutes. Section 475.17(1), Florida

Statutes requires that an applicant for licensure be honest, truthful,

trustworthy, and of good character and further provides that the applicant shall

have a good reputation for fair dealing. Section 475.25(1)(f), Florida Statutes

authorizes Respondent to deny an application for licensure if the applicant has

been "...convicted or found guilty, regardless of adjudication, of a crime in

any jurisdiction which directly relates to the activities of a licensed broker

or salesman or involves moral turpitude or fraudulent or dishonest dealing." No

direct evidence was introduced to show that Petitioner is honest, truthful,

trustworthy or of good character, not even the testimony of the Petitioner

himself. Rather, all of the evidence concerned the kinds of situations in which

Petitioner has cashed checks made payable to others. All of the arrests and

convictions involved other people's monies. Although Petitioner did give an

honest answer on the application requesting information as to any prior arrests

or criminal charges, that act of honesty in and of itself is not sufficient to

show that Petitioner is honest, truthful or trustworthy, especially in view of

the fact that Respondent already knew about one of the problematic checks the

check Petitioner bounced in approximately 1962. Petitioner has simply not met

his burden of proving that he is of good character as required by the licensing

statute, and no evidence was introduced to show that Petitioner's conduct should

be overlooked because of a lapse of time or because of some subsequent good

conduct. Although Petitioner argues that he only plead guilty to one of the 46

counts contained in that federal indictment, the Judgment and

Probation/Commitment Order admitted in evidence indicates that although

sentencing was withheld on 45 of those 46 counts Petitioner did in fact plead

guilty and was found guilty of all 46 counts charged. Even if Petitioner had

plead guilty and had been convicted on only one count (an argument contrary to

the evidence), Petitioner knew his mother-in-law had been dead for two years

before he signed her name to her Social Security checks and knew that he had no

lawful claim to that money. Because Petitioner needed the money at the moment

he simply took it. No evidence was introduced to show any subsequent

rehabilitation or good conduct which could lead to any inference that Petitioner

might not do the same with checks received in real estate transactions.

RECOMMENDATION

Based on the foregoing findings of facts and conclusions of law, it is

RECOMMENDED that a Final Order be entered denying Petitioner's application

for licensure.

DONE and RECOMMENDED this 27th day of August, 1984, in Tallahassee, Leon

County, Florida.

___________________________________

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of August, 1984.

COPIES FURNISHED:

Mildred Smith Brown, Esquire

4173 Southwest LeJeune Road

Miami, Florida 33146

Ralph Armstead, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212

Orlando, Florida 32001