STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARINA PADRO CINTRON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7368

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings, on March 3, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Marina P. Cintron, Pro Se

151 Fairway Drive #2301

Miami Springs, Florida 33166

For Respondent: Manuel E. Oliver

Assistant Attorney General

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

STATEMENT OF THE ISSUE

The ultimate issue for determination at final hearing was whether Petitioner's application for licensure as a real estate salesperson should be approved.

PRELIMINARY STATEMENT

On October 21, 1992, Respondent denied Petitioner's application for licensure as a real estate salesperson based upon (1) Petitioner's conviction in 1991 for grand theft in which Petitioner pleaded nolo contendere and (2) the revocation in 1992 of Petitioner's real estate salesperson license. Petitioner requested a formal hearing, and the matter was referred to the Division of Administrative Hearings.

A formal hearing was scheduled on March 3, 1993, pursuant to Notice of Hearing. Petitioner testified on her own behalf and presented the testimony of one witness. Respondent presented no witnesses. Petitioner offered three exhibits, only one of which was entered into evidence. Petitioner was permitted to late-file two exhibits, both of which were entered into evidence. Respondent entered one composite exhibit into evidence.

A transcript of the formal hearing was ordered. Both parties submitted proposed findings of fact and conclusions of law which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. In October 1992, Petitioner filed an application with Respondent for licensure as a real estate salesperson, together with the required fee. The application asked several questions, including in pertinent part: Question 9: if Petitioner had been "convicted of a crime, found guilty or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld," and Question 13: if Petitioner had had a license to practice any regulated profession revoked upon grounds of fraudulent or dishonest dealing or violations of law. Petitioner responded in the affirmative to both questions and provided written documentation and statements regarding the questions.

   
   

2. Petitioner attached to her October 1992 application for licensure various letters to support her application. The letters included one from her probation officer indicating her compliance with her probation; from the local board of realtors indicating that no complaints had been registered against Petitioner during her membership with them, which was from 1979 to 1982 and 1990 to 1992; and from her present employer who is a licensed real estate agent and has employed Petitioner since 1989.

   
   

3. On October 21, 1992, Respondent denied Petitioner's application for licensure as a real estate salesperson. The denial was based upon her response to questions 9 and 13 on the application, specifically her 1991 conviction and sentence and the 1992 revocation of her real estate salesperson license.

   
   

4. On May 29, 1991, Petitioner plead nolo contendere to three felony counts of grand theft in the third degree. She was placed on probation for five years with special conditions, and adjudication of guilt was withheld.

   
   

5. The special conditions of Petitioner's probation were that she would make restitution in the amount of $19,864.52, that she would perform 500 hours of community service, that she would fully cooperate with the State Attorney's Office in the investigation of the criminal activity in which she was involved, and that the probation may be terminated, upon motion, after 30 months.

   
   

6. The theft involved a scheme devised by Petitioner's "boss" to obtain funds, beyond entitlement, from the City of Miami. Petitioner was employed as a bookkeeper by an elderly center from 1986 to 1988, which provided transportation, lunches and recreational activities for senior citizens. The center received funds from the City of Miami to operate by being reimbursed for monies paid to vendors.

   
   

7. From 1986 to 1988, the center was performing poorly economically. In order to obtain additional monies, the invoices of vendors who did business with the center were inflated or increased and submitted by the center to the City of Miami for reimbursement. As bookkeeper, Petitioner was instrumental in the scheme. The difference between the actual cost and the inflated cost was retained by Petitioner and her boss and distributed at the end of the year to the center's employees, including Petitioner and her boss. Petitioner and her boss controlled the illegally obtained funds.

8. At the end of the center's budget year, which was June 30th of each year, the center was withholding back payments to the U.S. Internal Revenue Service (IRS), using the funds held to pay salaries. As a result, a debt to IRS was created, and when IRS attempted to collect on the debt in 1988, the scheme was discovered and stopped.

   
   

9. Petitioner cooperated fully with the State Attorney's Office.

   
   

10. At the time of her conviction, Petitioner was licensed by Respondent as a real estate salesperson. Less than a month after her plea of nolo contendere to the grand theft charge and sentence, in June 1991 Petitioner notified Respondent of her conviction and sentence in accordance with statutory provisions regulating the practice of her profession as a licensed real estate salesperson. No evidence of any other conviction was presented.

    
    

11. Subsequently, on or about October 30, 1991, an administrative complaint was filed by Respondent against Petitioner based upon her conviction. Petitioner admitted the allegations contained in the administrative complaint. She saw no need to deny the allegations, since she had reported the incident to Respondent. To Petitioner's shock and surprise, in a Final Order dated February 14, 1992, Petitioner's license as a real estate salesperson was revoked by Respondent. Petitioner had been licensed for 13 years without a complaint being filed against her.

    
    

12. On February 13, 1992, Petitioner's probationary terms were modified by the court due to her inability to pay the $19,864.52 restitution. The modification included, among other things, that Petitioner was only required to pay monthly the restitution to individuals, which totaled $1,700, that the restitution to the City of Miami could be paid through community service at

    $10.00 per hour for each month that Petitioner was unable to pay, and that probation could be terminated early after 30 months if restitution was paid in full.

    
    

13. By March 9, 1993, Petitioner had completed 500 hours of community service in accordance with the original court order, and for compliance with the modified court order, she had completed 235 hours of community service and paid

    $125.00 restitution to individuals.

    
    

14. Prior to her conviction and license revocation, in 1989. Petitioner was employed with a real estate broker at Allied Associates of the South, Inc. (Allied Associates), in Miami Springs, Florida, as a sales associate, and continued in that position until sometime in 1991 when, due to economic constraints on Allied Associates, the broker cut her staff, choosing a more experienced salesperson over Petitioner. During her employment as a sales associate, no complaints were received by Allied Associates against Petitioner, and no money which was entrusted to her was reported missing. Allied Associates received many complimentary remarks from clients and real estate brokers alike.

    
    

15. Subsequently, in November 1991, the broker re-employed Petitioner as a sales manager at Allied Associates. Petitioner informed the broker of her conviction and the circumstances of her conviction. The broker has allowed Petitioner to manage the financial books of the business with no problems. And Respondent has audited Allied Associates' financial books without citing a problem. Furthermore, Petitioner has handled escrow deposits and cash without any problems.

16. Since October 1992, Petitioner has been working with Allied Associates as a sales manager on a part-time basis due to financial constraints experienced by Allied Associates. She has continued to handle escrow deposits and cash without any problems. Moreover, the broker/owner of Allied Associates has no hesitation in putting Petitioner in a position of trust. Further, Petitioner has assisted in the guidance of Allied Associates' sales associates.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

18. Petitioner bears the burden of showing her entitlement to licensure. Florida Department of Transportation v. J.W.C. Company, 396 So.2d 778, 788 (Fla. 1st DCA 1981).

    
    

19. Petitioner's application for licensure was denied by Respondent because of her conviction on the three felony counts of grand theft to which she pled nolo contendere and because of the subsequent revocation of her real estate salesperson license which was based upon the aforementioned conviction.

    
    

20. Section 475.17, Florida Statutes, entitled "Qualifications for practice" provides in pertinent part:

    
    

    (1)(a) An applicant for licensure who is a natural person must . . . be honest, truthful, trustworthy, and of good character . . . If

    . . . his license to practice . . . has been revoked . . . by this or any other state . . . 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 appears

    . . . that the interest of the public and investors will not likely be endangered by the granting of registration.

    
    

21. Section 475.25, Florida Statutes, entitled "Discipline" provides in pertinent part:

    
    

    1. The commission may deny an application for licensure . . . if it finds that the

       . . . applicant:

       * * *

       (f) Has been convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which . . . involves moral turpitude or fraudulent or dishonest dealing. Any plea of nolo contendere shall be considered a conviction for purposes of this paragraph . . . .

22. It is uncontroverted that Petitioner pled nolo contendere to felony counts of grand theft and was convicted of same. Grand theft involves fraudulent or dishonest dealings. Therefore, the basis for Respondent's denial of Petitioner's application for licensure is established. Subsection 475.25(1)(f), Florida Statutes, supra.

    
    

23. The only remaining issue is whether, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, Petitioner has shown that her licensure would not likely endanger the interest of the public and investors. Subsection 475.17(1)(a), Florida Statutes, supra. Petitioner has met her burden on this issue. Although Petitioner's conviction was in 1991, which has been her only conviction, the activity for which she was convicted ceased in 1988.

    
    

24. In 1989, Petitioner was employed with a real estate broker as a sales associate and continued with the broker until sometime in 1991 when economic conditions forced the broker to cut her staff, choosing a more experienced salesperson over the Petitioner. From 1989 to 1991, no complaints were registered against Petitioner, and the broker was very satisfied with Petitioner's performance. Furthermore, Petitioner was entrusted with monies, and no problems developed.

    
    

25. Subsequently, in November 1991 Petitioner was rehired by the real estate broker as sales manager. Again, Petitioner was placed in charge of monies, and no problems developed. Additionally, Respondent has performed audits on the business' bookkeeping, and the business has passed all the audits. The broker has no hesitation in placing Petitioner in a position of trust, attesting to Petitioner's trustworthiness and honesty.

    
    

26. Respondent argues that Petitioner is not a person who is honest, truthful, trustworthy, and of good character, contrary to Section 475.17(1)(a), Florida Statutes, supra, and, therefore, should not be licensed. Respondent's argument is not persuasive. As indicated above, Petitioner has shown that her licensure would not likely endanger the interest of the public and investors.

    
    

27. Moreover, Petitioner is applying for a license as a real estate salesperson. As a result, her actions will be subject to the direction, control or management of another person. Subsection 475.01(d), Florida Statutes.

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

allowing Petitioner to take the real estate salesperson's examination.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of October 1993.

ERROL H. POWELL

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 29th day of October 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7368

Petitioner's proposed findings of fact.

Petitioner's proposed findings of fact consists of one paragraph with several sentences.

1. Substantially adopted in findings of fact 2, 4, 5, and 7-14; but rejected, regarding the second sentence, as unnecessary to the determination of the issues of this case and rejected, regarding the sixth sentence, as constituting argument, conclusions of law, or recitation of testimony.

Respondent's proposed findings of fact.

1. Substantially adopted in finding of fact 1.

2. Substantially adopted in findings of fact 1 and 4.

3. Substantially adopted in finding of fact 4.

4. Substantially adopted in finding of fact 10.

5. Substantially adopted in finding of fact 10.

6. Substantially adopted in finding of fact 11.

7. Substantially adopted in finding of fact 9.

8. Substantially adopted in finding of fact 9.

9. Substantially adopted in finding of fact 9.

10. Substantially adopted in finding of fact 9; but rejected, regarding notice and failure of Petitioner to appear at the informal hearing, as unnecessary to the determination of the issues of this case.

11. Addressed in the Preliminary Statement of this Recommended Order.

12. Addressed in the Preliminary Statement of this Recommended Order.

13. Substantially adopted in finding of fact 5; but rejected, regarding the first sentence, as constituting argument, conclusions of law, or recitation of testimony and rejected, regarding the last sentence which indicates that only Petitioner received and used the monies, as contrary to the evidence present.

14. Substantially adopted in finding of fact 8.

15. Substantially adopted in findings of fact 12-14. Note: Respondent proposed finding of fact is very close to constituting recitation of testimony.

16. Substantially adopted in finding of fact 13. Note: Respondent proposed finding of fact is very close to and constituting recitation of testimony.

17. Addressed in the Preliminary Statement of this Recommended Order.

18. Addressed in the Preliminary Statement of this Recommended Order.

COPIES FURNISHED:

Marina P. Cintron

151 Fairway Drive #2301

Miami Springs, Florida 33166

Manuel E. Oliver

Assistant Attorney General

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

Darlene F. Keller Division Director Division of Real Estate

Department of Business and Professional Regulation

Post Office Box 1900 Orlando, Florida 32802-1900

Jack McRay General Counsel

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

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: 92-007368

Orders for Case No: 92-007368