STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEAN FISHER, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, ) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 05-2773

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on October 5, 2005, in Clearwater, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

419 West Vine Street Kissimmee, Florida 34741

For Respondent: Barbara Rockhill Edwards, Esquire

Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for licensure as a real estate broker should be approved.

PRELIMINARY STATEMENT

On August 23, 2004, Petitioner filed an application for licensure as a real estate broker. Petitioner’s application was considered by the Florida Real Estate Commission (Commission) at its meeting on December 11, 2004. The Commission voted to deny the application, and through a Notice of Denial dated

January 13, 2005, the Department of Business and Professional Regulation, Division of Real Estate (Division), formally advised Petitioner that his license application was denied.

Through a letter dated January 31, 2005, Petitioner timely requested a “formal hearing” on the denial of his application. Before the matter was referred to the Division of Administrative Hearings (DOAH), the Commission reconsidered Petitioner’s application at its meeting on May 18, 2005. The Commission again voted to deny Petitioner’s application, but the denial was not memorialized until September 28, 2005, when the Division issued an Amended Notice of Intent to Deny.

On August 1, 2005, the Commission referred the matter to DOAH for the assignment of an administrative law judge to conduct the hearing requested by Petitioner. The final hearing was scheduled for and held on October 5, 2005.

At the hearing, Petitioner testified in his own behalf and also presented the testimony of Phillip Wetter. Petitioner's Exhibit P1 was received into evidence. The Commission did not

present any witnesses. The Commission’s Exhibits R1 through R3 were received into evidence. Official recognition was taken of Sections 475.17, 475.25, 475.42, and 475.181, Florida Statutes.

The Transcript of the final hearing was filed on

October 12, 2005. The parties were initially given 10 days from that date to file their proposed recommended orders (PROs), but the deadline was subsequently extended to November 4, 2005, upon the Commission’s unopposed motions. The PROs submitted by the parties have been given due consideration.

FINDINGS OF FACT

1. Petitioner has been a licensed real estate sales associate since 2000. His license number is 693538.

2. Most of Petitioner’s work in the real estate industry has involved business transactions, but he has also handled transactions involving residential properties.

3. On August 23, 2004, Petitioner filed an application for licensure as a real estate broker.

4. Petitioner disclosed in the application that, in July 2003, his sales associate license was suspended by the Commission for 30 days and that he was placed on probation for a period of six months.

5. That disciplinary action was based upon a single incident that occurred on or about November 7, 2001.

6. Petitioner agreed to the disciplinary action as part of a “Stipulation” to resolve an Administrative Complaint charging him with fraud and misrepresentation in violation of Section 475.25(1)(b), Florida Statutes (2001), and with having operated as a broker without a license in violation of Sections 475.42(1)(a) and 475.25(1)(e), Florida Statutes (2001).

7. The Administrative Complaint contained the following “essential allegations of material fact,” which were admitted by Petitioner as part of the Stipulation:

   1. On or about November 7, 2001, Respondent, a seller’s agent, facilitated a purchase and sale transaction between Buyer and Seller.

      
      

   2. On or about November 7, 2001, [Petitioner] was not registered with a broker.[1]

   3. The transaction referenced above failed to close.

      
      

   4. Buyer released a $1,000.00 payment to Seller.

      
      

   5. [Petitioner] submitted the $1,000.00 payment to Seller.

      
      

   6. [Petitioner] instructed [Seller] to execute a check in the amount of $500.00 payable to “Cash.”[2]

   7. [Petitioner] accepted the $500.00 payment as his own payment for services.

      
      

8. The Final Order adopting the Stipulation was filed with the agency clerk on June 25, 2003.

9. Petitioner’s suspension commenced on July 25, 2003, which is “thirty days from the date of filing of the Final Order.” The suspension ended 30 days later, on August 24, 2003.

10. Petitioner’s probation ran “for a period of six (6) months from the Effective Date [of the Stipulation],” which was defined as the date that the Final Order was filed with the agency clerk. As a result, the probation period ran from June 25, 2003, to December 25, 2003.

11. Petitioner was required to complete a three-hour ethics course and a four-hour escrow management course during the probation period, which he did.

12. Petitioner has not been subject to any other disciplinary action.

13. Petitioner has taken several continuing education courses in addition to those required as part of his probation. He is working towards certification by the Graduate Realtor Institute.

14. Petitioner has taken the classes necessary to become a real estate broker, and he passed the broker examination.

15. Petitioner has worked for broker Phillip Wetter since March 2005. Petitioner manages the day-to-day operation of Mr. Wetter’s brokerage firm. His responsibilities include preparing listings, negotiating contracts, and handling escrow funds. He

    has been involved in over 50 successful real estate transactions under Mr. Wetter’s supervision.

16. According to Mr. Wetter, Petitioner is meticulous in his work, including his handling of escrow funds, and he always makes sure that he “dots all his ‘I’s’ and crosses all his ‘T’s’.”

17. Petitioner acknowledged in his testimony before the Commission and at the final hearing that what he did in November 2001 was wrong. He credibly testified that he has learned from his mistake.

18. In his testimony before the Commission and at the final hearing, Mr. Wetter attested to Petitioner’s honesty, ethics, good moral character, as well as his qualifications to be a broker. That testimony was unrebutted and is corroborated by the letters of support from Petitioner’s former clients that are contained in his application file, Exhibit R1.

19. Mr. Wetter’s opinions regarding Petitioner’s fitness for licensure as a real estate broker are given great weight. Those opinions are based not only on his personal observations as Petitioner’s current qualifying broker, but also on his personal experience with Petitioner representing him in several business transactions while Petitioner was working for other brokers.

    CONCLUSIONS OF LAW

    
    

20. DOAH has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), Florida Statutes (2005).3

21. The Commission and the Division are the state agencies responsible for regulating real estate brokers and sales associates. See generally Ch. 475, pt. I, Fla. Stat.

22. The Division is the agency that issues the real estate broker license, but it does so only after certification from the Commission that the applicant has satisfied the applicable statutory and rule criteria. See § 475.181(1)-(2), Fla. Stat.

23. Petitioner has the burden to prove by a preponderance of the evidence that he satisfies the criteria for licensure as a real estate broker. See Dept. of Banking & Finance v.

    Osborne, Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Dept. of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla.

    1st DCA 1981).

    
    

24. The Division’s duty to license an applicant certified by the Commission is ministerial, as is its duty to deny licensure to an applicant not certified by the Commission. See

    § 475.181(1), Fla. Stat (“The [Division] shall license any applicant whom the commission certifies, pursuant to subsection (2), to be qualified to practice as a broker . . . .”) (emphasis supplied).

25. The Commission’s certification (or not) of an applicant for licensure is subject to the provisions of Section 475.181(2), Florida Statutes, and the statutes referenced therein, as well as the provisions of Section 475.25(1), Florida Statutes.

26. The first sentence of Section 475.181(2), Florida Statutes, requires the Commission to certify certain applicants for licensure. It provides:

    The commission shall certify for licensure any applicant who satisfies the requirements of ss. 475.17, 475.175, and 475.180.

    
    

    § 475.181(2), Fla. Stat. (emphasis supplied).

    
    

27. The second sentence of Section 475.181(2), Florida Statutes, authorizes the Commission to refuse to certify certain applicants for licensure. It provides:

    The commission may refuse to certify any applicant who has violated any of the provisions of s. 475.42 or who is subject to discipline under s. 475.25. . . . .

    
    

    Id. (emphasis supplied).

    
    

28. Section 475.25(1), Florida Statutes, also authorizes the Commission to deny an application for licensure if it finds that the applicant committed certain acts. As it relates to this case, the statute provides:

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

    applicant:

    (a) Has violated any provision of . . . s. 475.42. . . . .

    
    

    * * *

    
    

    (e) Has violated any of the provisions of [Chapter 475, Florida Statutes] . . . .

    
    

    § 475.25(1)(a) and (e), Fla. Stat. (emphasis supplied).

    
    

29. Section 475.17, Florida Statutes, which is titled “qualifications for practice” and is referenced in the first sentence of Section 475.181(2), Florida Statutes, provides in pertinent part:

    An applicant for licensure who is a natural person must be at least 18 years of age; hold a high school diploma or its equivalent; be honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for an active broker's license or a sales associate's license must be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or the applicant's registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending her or 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. The commission may adopt rules requiring an applicant for licensure to provide written information to the commission regarding the applicant's good character.

    
    

    § 475.17(1)(a), Fla. Stat. (emphasis supplied).

    
    

30. It is undisputed that Petitioner’s real estate sales associate license was suspended pursuant to, and based upon violations of, Chapter 475, Florida Statutes (2001). As a result, the emphasized language in Section 475.17(1)(a), Florida Statutes, is directly implicated and Petitioner is “deemed not to be qualified” for licensure as a real estate broker, “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.”

31. Petitioner met his burden to overcome the statutory presumption that he is not qualified for licensure. It has been four years since the incident that led to the suspension of Petitioner’s real estate sales associate license (and almost two years since the end of his probation period), which is a sufficient lapse of time; Petitioner has not had any

    disciplinary problems since that time; Petitioner’s current qualifying broker (and former client) credibly testified regarding Petitioner’s good reputation, good character, and his qualifications for licensure as a real estate broker; and there is no credible evidence that the approval of Petitioner’s application will endanger the public interest or investors and, to the contrary, the evidence establishes that Petitioner learned from his mistake and that he is conscientious in his handling of escrow funds. Therefore, Petitioner’s license application should be approved.

32. The Commission argues in its PRO that Section 475.17(1)(a), Florida Statutes, “does not apply to the case at bar, at all.” See Commission’s PRO, at 7. Instead, the Commission contends that the denial of Petitioner’s application is justified based upon the second sentence of Section 475.181(2), Florida Statutes, and/or Section 475.25(1), Florida Statutes, since it is undisputed that Petitioner violated Sections 475.25 and 475.42, Florida Statutes (2001).

33. This argument is rejected because the discretion given to the Commission by the second sentence of Section 475.181(2), Florida Statutes, and Section 475.25(1), Florida Statutes, to refuse to certify certain applicants for licensure, must be read together with Section 475.17(1)(a), Florida Statutes. See Aquino v. Dept. of Professional Regulation, 430 So. 2d 598, 599-

600 (Fla. 4th DCA 1983). Otherwise, that portion of Section 475.17(1)(a), Florida Statutes, which authorizes an applicant to overcome the presumption that he is not qualified for licensure because of his prior conduct, would be meaningless. Id.; State ex rel. Corbett v. Churchwell, 215 So. 2d 302, 304 (Fla. 1968) (refusing to conclude that a prior conviction “forever excludes” the applicant from being licensed as a real estate salesman and holding that the applicant is entitled to an evidentiary hearing to “try to show rehabilitation or even mitigation”).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Division issue a final order approving Petitioner’s application for licensure as a real estate broker.

DONE AND ENTERED this 22nd day of November, 2005, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 2005.

ENDNOTES

1/ The reason that Petitioner was not registered at the time of the incident is immaterial. Even if, as Petitioner contends, his real estate sales associate license was not “active” at the time of the incident because the broker for whom he was working failed to file the necessary paperwork with the Commission, the fact remains that Petitioner was operating as a real estate sales associate without an “active” license to do so. That said, the documents in Petitioner’s application file corroborate Petitioner’s testimony that he was employed by Vantage 2000 Commercial Realty operated by broker Frank Wigle at the time of the incident. See, e.g., Exhibit R1, at 000039 (Mr. Wigle’s statement that he gave Petitioner “a letter of termination” on December 11, 2001).

2/ Petitioner is bound by his admission of this fact as part of the Stipulation. However, it is noteworthy that the material elements of Petitioner’s explanation of the incident -- i.e., that the that the seller wanted him to have the $500 payment for his work on the failed transaction; that it was the seller’s idea to make out the check out to cash so that the broker would not get any of the money because the seller was upset that the broker “screwed up the deal”; and that the $500 was returned to the seller -- were corroborated by the prosecutor who drafted the Administrative Complaint and the Stipulation. See Exhibit P1, at 37-42 (comments of Mr. Harwood at the Commission’s meeting on May 18, 2005).

3/ Except as otherwise indicated, all statutory references are to the 2005 version of the Florida Statutes. See Lavernia v.

Dept. of Business and Professional Reg., 616 So. 2d 53, 54 (Fla. 1st DCA 1993); Bruner v. Board of Real Estate, 399 So. 2d 4, 5 (Fla. 5th DCA 1981).

COPIES FURNISHED:

Michael E. Murphy, Acting Director Division of Real Estate

Department of Business and Professional Regulation

400 West Robinson Street, Suite 802 North Orlando, Florida 32801

Nancy B. Hogan, Chairman

Department of Business and Professional Regulation

Florida Real Estate Commission

400 West Robinson Street, Suite 801 North Orlando, Florida 32801

Josefina Tamayo, General Counsel Department of Business and Professional

Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

Barbara Rockhill Edwards, Esquire Department of Legal Affairs

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Daniel Villazon, Esquire Daniel Villazon, P.A.

419 West Vine Street Kissimmee, Florida 34741

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 05-002773

Orders for Case No: 05-002773