88-000188 Roger Wozniak vs. Florida Real Estate Commission Status: Closed Recommended Order on Tuesday, May 10, 1988.

Summary: Real estate salesperson application rejected due to 13 felony convictions of bank and tax fraud 3 years earlier.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER WOZNIAK, )

)

Petitioner, )

)

vs. ) CASE NO. 88-0188

)

FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on

April 8, 1988, in West Palm Beach, Florida, before Robert E. Meale, Hearing

Officer of the Division of Administrative Hearings.

The representatives of the parties were as follows:

For Petitioner: Roger Wozniak, pro se

14 Hickory Hill Road

Tequesta, Florida 33469

For Respondent: Lawrence S. Gendzier, Esquire

Assistant Attorney General

Department of Legal Affairs

400 West Robinson Street, Room 212

Orlando, Florida 32801

BACKGROUND

On or about November 2, 1987, Petitioner submitted an application for

licensure as a real estate salesman.

By letter filed December 9, 1987, Respondent notified Petitioner that his

application for licensure as a real estate salesman had been denied on the

grounds that Petitioner failed to meet the requirement that he be "honest,

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

for fair dealing." The letter based this determination, in part, on

Petitioner's disclosure in his application that he had been convicted in 1985 of

13 counts of filing false FHA and VA loan applications.

By letter dated December 2, 1987, Petitioner requested a formal hearing on

Respondent's denial of licensure, which decision was made the same date although

not communicated to Petitioner in writing until December 9.

Petitioner presented one witness, himself. Respondent presented none.

Petitioner offered into evidence 11 exhibits. Respondent offered into evidence

two exhibits. All exhibits were admitted into evidence, except for Petitioner's

Exhibit Numbers 3, 6, 8, and 9. None of these exhibits, except for Petitioner's

Exhibit Number 9, was relevant. The single excluded relevant exhibit was a

summary of the legal requirements for taking the Florida examination for

contracting. This exhibit was excluded because it is not the best evidence of

the legal requirements, which are set forth in applicable statutory, decisional,

and regulatory law. At the hearing, ruling was reserved on Petitioner's Exhibit

Number 10, which is Petitioner's application for licensure with the Construction

Industry Licensing Board. This exhibit has been admitted.

Petitioner and Respondent filed a proposed recommended order. All of the

proposed findings are adopted, except that Petitioner's Paragraphs 1-5 and 14,

and Respondent's Paragraphs 1 and 8 -11, are rejected as unnecessary.

FINDINGS OF FACT

1. In January, 1985, Petitioner was convicted of thirteen felony counts

involving 12 fraudulent applications for FHA and VA loans, obstruction of

justice, add failure to report income for federal income tax purposes. For the

counts involving a conspiracy to defraud agencies of the federal government in

connection with loan applications, obstruction of justice, and falsifying an

income tax return, Petitioner received a sentence of two years. This sentence

was later modified, and Petitioner was given five years' probation for all

counts. Petitioner's probation ends in about two years.

2. The criminal acts concerning the loan applications were done in order

to assist a real estate brokerage firm in Illinois owned by Petitioner and his

wife, who was also named in the indictment, to sell homes with VA and FHA

guaranteed and insured financing. Petitioner was convicted of knowingly causing

the making of loan applications showing inflated purchase prices and nonexistent

gifts as sources of downpayments. The net effect of these practices was to

leave the mortgage lender undersecured.

3. On or about November 2, 1987, Petitioner submitted an application for

licensure as a real estate salesman. In his application, he disclosed the above

felony convictions, the revocation of his Illinois real estate broker's license

which took place as a result of the convictions, and the denial of an earlier

application for Florida licensure as a real estate salesman which denial was due

to his convictions and the revocation of his Illinois broker's license.

4. By letter filed December 2, 1987, Respondent notified Petitioner that

his application for licensure as a real estate salesman had been denied because

he failed to meet the requirements that he be "honest, truthful, trustworthy,

and of good character, and shall have a good reputation for fair dealing." The

letter cited as reasons for this determination the same reasons cited in the

earlier denial plus a recommended order filed on July 27, 1987, in DOAH Case No.

87-2018, in which it was recommended that the application be denied.

5. Although Petitioner has not regained his Illinois real estate broker's

license, he received an Illinois real estate salesman's license in the fall of

1986.

6. Since his conviction, Petitioner has taken various educational programs

useful in the real estate business. On March 17, 1987, Petitioner graduated

with a Bachelor of Science degree in Business Administration from California

Coast University. On November 1, 1987, Petitioner completed the Florida Real

Estate Commission Course #1 sponsored by the Gold Coast School of Real Estate.

7. By letter dated November 30, 1987, L. Edward Holmes, a licensed real

estate broker, notified Respondent that he was willing to supervise personally

Petitioner if he were granted a license.

8. By letter dated March 10, 1987, V. A. Indovina, M.D., who is staff

psychiatrist with the DuPage County (Illinois) Health Department, notified

Respondent that he (or she) felt that Petitioner has learned the consequences of

his past behavior and will not engage in illegal behavior in the future.

9. On or about November 24, 1987, Petitioner applied for a Florida

contractor's license with the Construction Industry Licensing Board. He clearly

disclosed his convictions in the application. Shortly prior to the hearing, the

Construction Industry Licensing Board informed Petitioner that he was eligible

to take the next contractor's examination.

10. Respondent entered a final order on August 19, 1987, adopting the

recommended order of June 17, 1987, in DOAH Case No. 87-2018, and denying

Respondent's earlier application for licensure as a real estate salesman.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

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

12. Respondent is charged with the responsibility of reviewing

applications for licensure as a real estate broker or salesman in Florida,

denying applicants found unqualified, and certifying to the Department of

Professional Regulation applicants found qualified so the Department of

Professional Regulation may issue the appropriate license. Sections 475.181 and

475.25(1), Florida Statutes.

13. Petitioner has the burden of proving by a preponderance of the

evidence that he is entitled to be certified as qualified for licensure as a

real estate salesman. Florida Department of Transportation v. J. W. C. Company,

Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. "An applicant for licensure . . . shall be . . . honest, truthful,

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

dealing." Section 475.17(1)(a), Florida Statutes.

15. Respondent may deny licensure to an applicant who has been "guilty of

fraud, misrepresentation, concealment, false promises, false pretenses,

dishonest dealing by trick, scheme, or device, . . . or breach of trust in any

business transaction in this state or any other state . . .; . . . has aided,

assisted, or conspired with any other person engaged in any such misconduct and

in furtherance thereof; or has formed an intent, design, or scheme to engage in

any such misconduct and committed an overt act in furtherance of such intent,

design, or scheme." Section 475.25(1)(b), Florida Statutes.

16. Respondent may deny licensure to an applicant who has been "convicted

. . . 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." Section 475.25(1)(f), Florida Statutes.

17. Respondent may deny licensure to an applicant who has had "a broker's

or salesman's license revoked, suspended, or otherwise acted against . . .."

Section 475.25(1)(g), Florida Statutes.

18. If the applicant has been guilty of conduct that is grounds for

revocation or suspension, he shall be deemed unqualified for licensure "unless,

because of lapse of time and subsequent good conduct and reputation, or other

reason deemed sufficient, it appears to the commission that the interest of the

public and investors will not likely be endangered by the granting of

registration." Section 475.17(1)(a), Florida Statutes.

19. Petitioner's felony convictions provide ample grounds for denial of

licensure. The sole issue is whether Petitioner is entitled to licensure under

the above-cited provision allowing evidence of rehabilitation.

20. In light of the three-year period over which Petitioner's numerous

criminal acts took place, a little over three years since his conviction is not

a very long period of time to evaluate Petitioner's subsequent behavior. The

lapse of time since Petitioner's conviction is not particularly long given the

seriousness of the offenses. All of the offenses directly relate to

Petitioner's honesty and character and all, except possibly the convictions

concerning falsification of tax returns and obstruction of justice, directly

relate to the practice of real estate.

21. Petitioner offered evidence of his subsequent educational

accomplishments. While these are laudable, they are not reliable indications of

Petitioner's trustworthiness. Petitioner's integrity and character are at issue,

not his competence.

22. In a similar vein, Petitioner offered evidence of his overcoming bouts

of depression and reentering the work force. Certainly, anyone who through hard

work and perseverance is able to overcome the tremendous impediments of numerous

felony convictions is to be commended. However, renewed commercial activity

does not show subsequent good conduct and honest reputation, especially when

Petitioner's problems stem from less a lack, but perhaps an excess, of ambition.

Rather, such activity gives Petitioner the opportunity to demonstrate his good

conduct and earn an improved reputation.

23. There is little evidence of good conduct and honest reputation beyond

the conclusory and uncorroborated assertions of good character by Petitioner.

The letter from Petitioner's psychiatrist does not set forth the grounds for the

opinion that Petitioner will not engage in illegal behavior in the future. It

may have been based solely upon the statements of Petitioner during the course

of his treatment. Without knowing if this is so and, if so, the number and

duration of sessions, it is impossible to give much weight to this letter. The

letter from Mr. Holmes offering to supervise Petitioner similarly offers little

reason for giving it much weight. Mr. Holmes does not address any character

issues; his reference to "all the aspects of [Petitioner's] background" may

refer only too competency considerations.

24. There is no evidence that the action of the Construction Industry

Licensing Board in allowing Petitioner to take the contractor's examination

means that they have reached a final determination that he is of "good moral

character," as required by Section 489.111(2)(b), Florida Statutes.

25. Even if the Construction Industry Licensing Board has made such a

determination, it would have no bearing on whether Petitioner satisfies the

requirements for licensure as a real estate salesman. Section 489.111(3)(a)

allows the Construction Industry Licensing Board to deny certification for good

moral character "only if [t]here is a substantial connection between the lack of

good moral character of the applicant and the professional responsibilities of a

certified contractor." The Construction Industry Licensing Board may have

determined, for its purposes, that such a connection does not exist, even though

it clearly does with respect to real estate licensure. Also, Section

489.111(3)(b) requires that the Construction Industry Licensing Board's finding

of a lack of good moral character be supported by clear and convincing evidence.

The standard of proof in the present case is a preponderance of the evidence,

and, more importantly, it is on the applicant, not the licensing board.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying the application of

Petitioner for licensure as a real estate salesman.

DONE and RECOMMENDED this 10th day of May, 1988, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE

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 10th day of May, 1988.

COPIES FURNISHED TO:

LAWRENCE S. GENDZIER, ESQUIRE

ASSISTANT ATTORNEY GENERAL

DEPARTMENT OF LEGAL AFFAIRS

400 WEST ROBINSON STREET

ROOM 212

ORLANDO, FLORIDA 32801

ROGER WOZNIAK

14 HICKORY HILL ROAD

TEQUESTA, FLORIDA 33469

DARLENE F. KELLER

EXECUTIVE DIRECTOR

FLORIDA REAL ESTATE COMMISSION

POST OFFICE BOX 1900

400 WEST ROBINSON STREET

ORLANDO, FLORIDA 32801

WILLIAM O'NEIL

GENERAL COUNSEL

DEPARTMENT OF PROFESSIONAL REGULATION

130 NORTH MONROE STREET

TALLAHASSEE, FLORIDA 32399-0750