STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES D. VEAL, )

)

Petitioner, )

)

vs. )

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 06-1139

)

RECOMMENDED ORDER

Notice was provided and on June 12, 2006, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes (2005). The hearing location was the Office of the Judges of Compensation Claims, 2401 State Avenue, Suite 100, Panama City, Florida. The hearing commenced at 10:00 a.m. central time. The hearing was held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: James D. Veal, pro se

209 South Cove Lane

Panama City, Florida 32401

For Respondent: Thomas Barnhart, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Is Petitioner qualified for practice as a real estate sales associate, when considering his criminal history record in its substance and point in time?

PRELIMINARY STATEMENT

On August 2, 2005, Petitioner made application to the State of Florida, Department of Business and Professional Regulation (DBPR), to become a real estate sales associate (associate).

The application was stamped as received on August 5, 2005, and again on September 15, 2005. The application required provision of background information concerning any criminal history.

Consistent with that request Petitioner provided information concerning his past criminal history involving marijuana, passing worthless checks, and battery.

On December 8, 2005, Petitioner had written the Florida Real Estate Commission (the Commission) to advise its members that he would be unable to attend their session to consider his application based upon his examination schedule in college. On December 13, 2005, the Commission considered Petitioner's application and denied it.

On January 24, 2006, the Commission served a Notice of Intent to Deny Petitioner's application to become an associate, explaining the basis for the denial as related to the criminal history and the insufficient lapse of time to establish

rehabilitation following the criminal history. The Notice of Intent also explained Petitioner's rights to respond to the Commission's decision to reject the application. On

February 16, 2006, the Commission received Petitioner's Petition indicating that there were disputes of material fact about the underlying application and the denial and requesting a hearing.

At first the Commission scheduled Petitioner for an informal hearing to be conducted on April 18, 2006. Later Petitioner was notified that his appearance at an informal hearing would not be necessary.

On March 31, 2006, the Commission referred the case to the Division of Administrative Hearings (DOAH) to conduct a formal hearing in accordance with Sections 120.569 and 120.57(1), Florida Statute (2005). The case was assigned as DOAH Case

No. 06-1139 and proceeded to hearing.

Petitioner testified and presented Jimmy Ruthven, Brenda Ruthven, and Renee R. Willoughby as his witnesses. Petitioner's Exhibits numbered 1 and 2 were admitted as evidence to supplement or explain Petitioner's testimony. Ruling was reserved on Petitioner's Exhibit numbered three. It is also admitted to supplement or explain Petitioner's testimony.

§ 120.57(1)(c), Fla. Stat. (2005). Respondent's Composite Exhibit numbered 1 and Exhibit numbered 2 were admitted.

Respondent filed a proposed recommended order which was considered in preparing the Recommended Order. No post-hearing document was submitted by Petitioner.

FINDINGS OF FACT

1. Petitioner was born on September 18, 1975. Petitioner applied to the Commission to become an associate. The application was received August 5, 2005. Petitioner made application to become an associate on the form provided by DBPR.

2. In response to a question about his background, Petitioner revealed information concerning crimes he was accused of committing.

3. On May 27, 1994, Petitioner was arrested by the Panama City Beach, Florida, Police Department and charged with marijuana possession over 20 grams, marijuana possession with intent to deliver, and marijuana sale or purchase, all under authority set forth in Section 893.13, Florida Statutes. The original marijuana case involved arresting charges for felonies. This case was assigned upon charges in the Fourteenth Judicial Circuit, Case No. 9401076CFA. On September 18, 1995, the case was disposed of when it was dropped/abandoned.

4. On October 28, 1996, Petitioner was arrested by the Seminole County Sheriff's Office in Seminole County, Florida, on three counts of fraud related to checks written upon insufficient funds. One check from May 30, 1996, was for $40.00

   to Bayou George Rainbow, two additional checks in the amount of

   
   

   $75.50 each from the date June 7, 1996, were written to Publix. When Petitioner was charged there were three counts, a single count for each check. This case originated in Bay County, Florida. On November 8, 1996, the Petitioner pled guilty to Count I within the charges. He pled nolo contendere to Counts II, III, and IV within the charges. He was assessed $149.00 in relation to Count I. The fourth count within the charges is of unknown origins, when considering the proof at hearing.

   Adjudication was withheld in relation to all counts. This disposition was made in Case No. 96004585MMMW.

5. On May 14, 1997, Petitioner was arrested by the Pensacola Police Department for possession of marijuana, in an amount under 20 grams, pursuant to Section 893.13, Florida Statutes. This case was brought before the Escambia County Court, Case No. 9720966MMA. On June 4, 1997, Petitioner pled nolo contendere to a first degree misdemeanor pertaining to the marijuana possession. The adjudication was withheld. Petitioner was placed on probation for six months and required to pay $160.00 in court costs.

6. On April 24, 1998, Petitioner was arrested by the Panama City Police Department for marijuana possession with intent to distribute, a felony under Section 893.13, Florida Statutes. He was also arrested for narcotic equipment

   possession under Section 893.147, Florida Statutes, a misdemeanor. He was charged before the Circuit Court of the Fourteenth Judicial Circuit, in Case No. 9800991CFA. On December 15, 1998, Petition pled nolo contendere to possession of a controlled substance and adjudication was withheld. He pled to what has been described in the proof as controlled substance possession, sell etc., a felony. He received four years' probation. Petitioner also pled nolo contendere to the narcotic equipment possession or the possession of paraphernalia on the same date, for which he was found guilty/convicted, with terms of probation for one year to run concurrent with the probation associated with the other offense.

7. In relation to the present case, where Petitioner pled to offenses involving marijuana, information provided indicated that he was called upon to abide by any court restrictions placed on him.

8. On November 26, 2002, Petitioner was arrested by the Walton County Sheriff's Office under Section 784.03, Florida Statutes, for battery, cause(d) by bodily harm associated with domestic violence, a first degree misdemeanor. He was charged in the County Court of the First Judicial Circuit, in and for Walton County, Florida, in Case No. 021299MM. On March 24, 2003, Petitioner pled no contest to simple battery. Adjudication was withheld and he was required to pay $301.00 in

   costs and to attend and complete an anger management course and have no violent contact with the victim.

9. On January 17, 2006, the Commission entered a Notice of Intent to Deny Petitioner a license to become an associate based upon the criminal violations that have been described. The Notice of Intent established specific reasons for the denial that will be discussed in the Conclusions of Law.

10. To place the criminal offenses in context Petitioner, his mother, step-father and a family friend testified about Petitioner's life.

11. Petitioner began to have problems with his conduct when his parents had their marriage dissolved. Around that time Petitioner was in the transition between late adolescence and his teenage years.

12. Eventually his mother remarried and the two families combined. That arrangement was difficult because of conflict between Petitioner and a step-brother.

13. Petitioner concedes the problems that he had with marijuana. When Petitioner was charged with 20 grams of marijuana on one occasion, he admits to having seven grams on his person. In addressing the problem he participated in separate court-ordered drug programs which he completed. His drug abuse entered into the decision to write checks for insufficient funds.

14. Concerning the incident involving the charge of domestic battery, which was resolved by a no contest plea to simple battery, Petitioner without contradiction, testified that this situation came about on the basis of an argument with his girlfriend, a verbal exchange not involving physical contact. The situation that led to his arrest for domestic misconduct took place when Petitioner and his girlfriend had an argument at the beach. He was arrested the next day. Petitioner attended the anger management course that he was ordered to attend. Petitioner indicated that there were no further confrontations with the girlfriend.

15. Petitioner satisfactorily complied with the terms of his probation in each criminal case.

16. Petitioner reports that he has been drug-free since 1998.

17. Jimmy Ruthven, Petitioner's stepfather, described the family issues and conflict in the beginning of the relationship between the witness, Petitioner and their respective families. Mr. Ruthven has been the step-father for 15 years. He describes Petitioner in more recent times, as doing better, as being stable without problems.

18. Brenda Ruthven, Petitioner's mother, identified the divorce from her former husband as the beginning point for Petitioner's problems. In this period Petitioner was

    rebellious, used drugs, had undergone counseling and so forth. During the last four or five years she has seen a turnaround in Petitioner's conduct. Over the last four years Petitioner has been more responsible.

19. Renee R. Willoughby, a family friend who has been familiar with Petitioner over time, has noticed in the last six or seven years that Petitioner has improved in his conduct and has shown himself to be a person of intelligence and integrity.

20. Petitioner attends Florida State University. He is a Dean's list student in Business Administration and Marketing. He served on the Student Council and the Campus Improvement

    Board at the Panama City, Florida, campus of the university. He expects to graduate in December 2006.

21. Petitioner has worked at Criolla's Restaurant at Santa Rosa Beach, Florida, since February 2002, as a server and bar tender.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case pursuant to Sections 120.569, 120.57(1), and 455.213(4), Florida Statutes (2005).

23. In accordance with Section 455.213(1), Florida Statutes (2005), Petitioner applied for licensure as an associate by the Commission. The application was denied for

    reasons stated by the Commission in its Intent to Deny, associated with Petitioner's criminal history both as to substance and timing. Petitioner disputed material facts upon which the Commission relied to deny the license. This led to the formal hearing. Petitioner bore the burden of proving of his entitlement to a license upon a preponderance of the evidence. See § 120.57(j), Florida Statutes (2005) and Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

24. As stated in the Intent to Deny, the Legislature has established regulation of the real estate profession by DBPR for the preservation of the health, safety and welfare of the public. § 455.201(2), Fla. Stat. (2005).

25. To be qualified to practice as an associate Petitioner must comply with Section 475.17(1)(a), Florida Statutes (2005), where it states in part:

    (1)(a) 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 moral character; and have a good reputation for fair dealing. An applicant for an active broker's license or a sales associate 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 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. . . .

    
    

    From this section, the Commission in its Intent to Deny questions Petitioner's honesty, truthfulness, trustworthiness, good character, reputation for fair dealing, competence and qualifications to conduct real estate transactions, and negotiations with investors and others in relationships, with trust and confidence and the timing of his criminal history when measured against this list of qualifications.

26. The Commission reviewed the application under Section 475.181, Florida Statutes (2005), and determined to deny the application based upon the language in the provision which states:

    1. The department shall license any applicant whom the commission certifies, pursuant to subsection (2), to be qualified to practice as a broker or sales associate.

       
       

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

       475.180. 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.

       The application shall expire 1 year after the date received if the applicant fails to take the appropriate examination.

       
       

       * * *

       
       

27. In denying the application reference is made to Section 475.25(1)(o), Florida Statutes (2005), which states:

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

    
    

    (o) . . . has been found guilty of a course of conduct or practices which show that she or he is so . . . dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom she or he may sustain a confidential relation, may not safely be entrusted to her or him.

    
    

28. The Commission has a basis for denying the license application in relation to the marijuana offenses, writing checks with insufficient funds, and the simple battery case. Ultimately Petitioner has failed to overcome the significance of his criminal past, taking into account the nature of the offenses and the dates upon which the offenses occurred, in particular the more recent case involving simple battery. While Petitioner has shown that he has engaged in an effort to change his life by his conduct and the pursuit of formal education, more time must pass before it can be safely concluded that his more recent past represents what may be expected in his conduct in the future. This pause is necessary given the nature of the

relationship between an associate and the clientele served by the profession.

RECOMMENDATION

Upon the consideration of the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered denying Petitioner a license as an associate.

DONE AND ENTERED this 14th day of July, 2006, in

Tallahassee, Leon County, Florida.

S

CHARLES C. ADAMS

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 14th day of July, 2006.

COPIES FURNISHED:

James D. Veal

209 South Cove Lane

Panama City, Florida 32401

Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

Nancy B. Hogan, Chairman Florida Real Estate Commission Department of Business and

Professional Regulation

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

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 06-001139

Orders for Case No: 06-001139