STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY PATERNO, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5270

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on October 17, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Mr. Anthony J. Paterno, pro se

2151 Northeast 167th Street, Apartment 4 North Miami Beach, Florida 33162

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General

400 West Robinson Street, Suite 107 South Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Petitioner's application for licensure as a real estate salesman should be granted.

PRELIMINARY STATEMENT

By letter dated August 20, 1991, Respondent notified Petitioner that his application for licensure as a real estate

salesman had been denied. Petitioner requested a formal hearing, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on August 22, 1991. The proceeding was assigned to the undersigned on August 27, 1991. A formal hearing was scheduled for October 3, 1991, pursuant to a Notice of Hearing issued on September 11, 1991, and then rescheduled for October 17, 1991.

At the formal hearing, Petitioner testified in his own behalf, presented the testimony of Ms. Amy Jones, a clinical therapist at Bethesda Manner.

Bethesda Manner is the residential component at St. Luke's Center. Ms. Jones has a Master's degree and was qualified as an expert in addiction treatment. Petitioner submitted six exhibits for admission in evidence. Petitioner's Exhibits 1 and 2 were admitted in evidence without objection. 1/ Petitioner's Exhibit 3-6 were admitted in evidence over objection. 2/ Petitioner's Exhibits

5 and 6 were late filed exhibits. Respondent called no witnesses and submitted one exhibit for admission in evidence. Respondent's Exhibit 1 was admitted in evidence without objection. 3/

A transcript of the record of the formal hearing was filed with the undersigned on October 31, 1991. Proposed findings of fact and conclusions of law were timely filed by Respondent on November 25, 1991. Petitioner did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent determined that Petitioner is not qualified for licensure as a real estate salesman due to Petitioner's criminal record. Petitioner voluntarily disclosed his criminal record in response to Question 7 on the application for licensure. On June 30, 1990, Petitioner was charged with resisting arrest without violence. On July 2, 1991, Petitioner was charged with attempted robbery.

   
   

2. Both charges were processed in Circuit Court in Dade County, Florida. Case No. 90-26052 involved the charge of resisting arrest. Case No. 90-26276 involved the charge of attempted robbery.

   
   

3. Petitioner entered a plea of nolo contendere to the charge of attempted robbery on October 15, 1990. Adjudication of guilt was withheld and Petitioner was placed on probation for 12 months. Petitioner's probation was terminated successfully after

   three months by an Order Successfully Terminating Probation entered on February 11, 1991.

   
   

4. On July 10, 1991, an order was entered expunging and sealing the record with respect to the charge of resisting arrest. Respondent was ". . . restored in the contemplation of the law to the status the Defendant occupied before such arrest."

   
   

5. Petitioner's voluntary disclosure of his prior criminal charges complied with the express terms of his application for licensure. His prior criminal involvement was caused by substance addiction. He has been successfully rehabilitated from that addiction and is able to carry out his responsibilities if he becomes licensed as a real estate salesman.

   
   

6. Petitioner began working with a landscape contractor approximately 10 months ago. Petitioner began as a field worker and is now carrying out management functions, including: placing laborers at job sites; depositing money in his employer's bank account; handling the business payroll; and making payments for materials at the job sites.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

8. Petitioner, as the applicant, has the burden of proof in this proceeding. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 19810; Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner must

   demonstrate by a preponderance of the evidence that he is qualified for licensure.

   
   

9. Petitioner satisfied his burden of proof in this proceeding. Petitioner responded truthfully to questions regarding his criminal record. Untruthfully responding to inquiries of the Respondent is a valid ground for denying a license. Gentile, M.D., v. Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087 (Fla. 1st DCA 1984). Such an act evidences sufficient lack of good moral character to deny Petitioner's application for a license as a real estate salesman. Petitioner is not an untruthful applicant that lacks sufficient moral character for licensure as a real estate salesman.

   
   

10. Petitioner voluntarily sought professional treatment for his substance abuse and has been successfully rehabilitated. The expert testimony presented by Petitioner and Petitioner's own testimony explaining the causes of his prior criminal record and his voluntary treatment and rehabilitation were credible and persuasive.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's

application for licensure as a real estate salesman.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of January 1992.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January 1992.

ENDNOTES

1/ Petitioner's Exhibit 1 is a certified copy of an Order On Motion To Expunge And Seal Court Records. Petitioner's Exhibit 2 is a copy of an Order Successfully Terminating Probation.

2/ Petitioner's Exhibit 3 is a hand written letter from Petitioner's employer. Petitioner's Exhibit 4 is a copy of a hand written letter from Mr. Paul Ingles, Associate Addictions Professional. Petitioner's Exhibits 5 and 6 are Affidavits from individuals who affirm Petitioner's good character.

3/ Respondent's Exhibit 1 is a composite exhibit consisting of Petitioner's application for licensure and related internal documents prepared by Respondent.

APPENDIX TO RECOMMENDED ORDER

Petitioner submitted no proposed findings of fact.

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. No notation is made for unnumbered paragraphs.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Preliminary Statement

2. Accepted in Finding 1

3. Accepted in Findings 1-3

4. Accepted in Finding 4

5. Accepted in Finding 3

6-7 Rejected as recited testimony

8 Accepted in Finding 6

9-11 Rejected as recited testimony

12-13 Rejected as conclusions of law

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street

P.O. Box 1900

Orlando, FL 32802-1900

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Manuel E. Oliver, Esquire Assistant Attorney General Suite 107 South

400 West Robinson Street Orlando, Florida 32801

Anthony Paterno pro se

2151 Northeast 167th Street Apt. 4

North Miami Beach, Florida 33162

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005270

Orders for Case No: 91-005270