STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAUL BADO, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4385

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 9, 1996, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Mr. Raul Bado, pro se

8490 Southwest 96 Street

Miami, Florida 33156

For Respondent: William N. Halpern, Esquire

Suite 107, South Tower

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner is qualified to take the examination for licensure as a real estate salesperson.

PRELIMINARY STATEMENT

At the formal hearing on January 9, 1996, in order to facilitate the presentation of evidence, the Respondent presented its case first. The Respondent's evidence consisted of three exhibits, all of which were received in evidence. The Respondent did not call any witnesses. The Petitioner testified on his own behalf. He did not offer any exhibits, nor did he call any other witnesses.

At the conclusion of the hearing the parties were allowed ten days from the filing of the transcript within which to serve their respective proposed recommended orders. The transcript of the formal hearing was filed with the Hearing Officer on January 24, 1996. The parties were advised in writing that the deadline for serving their proposed recommended orders was Monday, February 5, 1996. The Respondent filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. Those proposed findings of

fact are specifically addressed in the appendix to this Recommended Order. As of the date of this Recommended Order there has been no post-hearing submission by the Petitioner.

FINDINGS OF FACT

1. On or about March 6, 1995, the Petitioner filed an application seeking to be licensed as a real estate sales person. In response to question number 9 on the application form (which inquires about the applicants's criminal history), the Petitioner answered in the affirmative and included the following explanatory details:

   
   

   I entered a plea of guilty to 1 count of distribution of a controlled substance on March 25, 1993, in Federal Court, before Judge Adkins. I was sentenced to 2 years in a Federal Camp.

   
   

2. On January 23, 1992, the Petitioner was arrested and charged with two felony charges related to possession of cocaine and conspiracy to possess cocaine. On March 26, 1993, the Petitioner entered a plea of guilty to Count 2 of the indictment. Count 2 charged the Petitioner with conspiracy to possess with intent to distribute cocaine, which is a Class B felony in violation of 21 USC Section 846. On March 26, 1993, a judgment was entered in which the Petitioner was adjudged guilty of the crime described above, was sentenced to a prison term of 24 months, and was fined $15,000.00. The judgment also imposed 4 years of supervised release following release from prison.

   
   

3. The Petitioner served 15 months in federal prison and was then transferred to a halfway house for a period of four months. The Petitioner then served the last two months of his sentence on home confinement. He was released from confinement on May 25, 1995, at which time he began a four-year period of probation. The Petitioner is presently on probation. His probation period is presently scheduled to end in May of 1999. With good behavior he may be able to obtain an earlier release from probation.

   
   

4. Since his release from confinement the Petitioner has been making regular payments towards his $15,000.00 fine. He presently owes about

   $10,500.00 on the fine.

   
   

5. Following his arrest, the Petitioner cooperated with law enforcement authorities and his cooperation led to the arrest of a number of other people on charges related to possession or distribution of cocaine.

   
   

6. Since his release from confinement the Petitioner's primary employment has been in the carpet business.

   
   

7. The Petitioner appears to have an earnest desire to be rehabilitated. He did not, however, present any persuasive evidence that he had achieved that goal. Notably absent from the record is any testimony from friends, relatives, neighbors, employers, or business associates regarding such matters as the Petitioner's present character and whether he is honest, truthful, and trustworthy.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

9. Section 475.17, Florida Statutes, provides, in pertinent part: (1)(a) An applicant for licensure who is a

   natural person must . . . be honest, truthful,

   trustworthy, and of good character; and have a good reputation for fair dealing. If

   the applicant has been . . . guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspend- ing his license under this chapter 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 appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration.

   
   

10. Section 475.25, Florida Statutes, 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 of

       . . . a crime in any jurisdiction which .

       . . involves moral turpitude or fraudulent or dishonest dealing.

       
       

11. The crime of conspiracy to possess with intent to distribute cocaine in violation of 21 USC Section 846 is a crime which involves moral turpitude and dishonest dealing.

    
    

12. The facts and circumstances of this case are very similar to, and appear to be controlled by, the decision in Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So.2d 1056 (Fla. 5th DCA 1988). In Antel an applicant for licensure as a real estate salesperson applied for licensure shortly after release from prison following conviction for a crime involving moral turpitude. The application in Antel was denied because the applicant had been convicted of a crime involving moral turpitude and "because the hearing examiner found there was insufficient evidence of her (Antel's) rehabilitation." In affirming the denial, the court noted, at page 1057:

    
    

    The hearing officer found that Antel has an earnest desire to be rehabilitated. But she (Antel) presented nothing more than the facts of the crime itself, and a scant employment history since her release on parole-barely more than one year prior to the hearing.

    And at page 1058 the court concluded its opinion with the following words:

    
    

    The burden of proof of rehabilitation was therefore placed on Antel at the hearing. Florida Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778

    (Fla. 1st DCA 1981). In view of the short time period since Antel's release from prison, and the scant record presented at the hearing, we cannot find that the Commission erred in finding Antel failed to establish her rehabilitation and right to be licensed. How- ever, we do not agree that Antel's rehabilita- tion must necessarily be delayed until she has successfully completed her parole in 1993.

    
    

13. The Petitioner here, like the applicant in Antel, presented only scant evidence of his activities since his criminal conviction. The evidence is insufficient to establish his rehabilitation. Accordingly, his application must be denied.

RECOMMENDATION

For all of the foregoing reasons, it is RECOMMENDED that a Final Order be issued in this case denying the Petitioner's application. It is further recommended that such denial be without prejudice to the Petitioner's opportunity to file a future application as such time as he may have persuasive evidence of his rehabilitation.

DONE AND ENTERED this 23rd day of February, 1996, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH, 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 February 1996.

APPENDIX

The following are the specific rulings on all proposed findings of fact submitted by all parties:

Proposed findings submitted by Petitioner: (None submitted.)

Proposed findings submitted by Respondent:

Paragraphs 1 through 10: Accepted in substance with a few additional details in the interest of clarity.

Paragraph 11: Rejected as constituting argument about the quality of the evidence, rather than being a proposed finding of fact.

Paragraphs 12 and 13: Rejected as a combination of subordinate and unnecessary details and argument.

COPIES FURNISHED:

William N. Halpern Assistant Attorney General Suite 107, South Tower

400 West Robinson Street Orlando, Florida 32801

Mr. Raul Bado

8490 Southwest 96th Street Miami, Florida 33156

Henry M. Solares, Director Division of Real Estate Post Office Box 1900

Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

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 ten 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: 95-004385

Orders for Case No: 95-004385