STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LILIA A. GONZALEZ, )

)

Petitioner, )

)

vs. ) Case No. 06-1140

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case by video teleconference on June 1, 2006, with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A. 1020 Verona Street

Kissimmee, Florida 34741

For Respondent: Thomas Barnhart, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's application for licensure as a real estate sales associate should be granted.

PRELIMINARY STATEMENT

Lilia A. Gonzalez made application for licensure as a real estate sales associate. Her application was considered by the Department of Business and Professional Regulation, Division of Real Estate (Division of Real Estate), through the Florida Real Estate Commission (Commission) at its regularly scheduled meeting on October 19, 2005. Ms. Gonzalez was not present nor was she represented by counsel at the meeting. On December 23, 2005, the Commission filed a Notice of Intent to Deny her application, with a Key for License Denials (Key) attached, citing facts and conclusions of law, which referred to the Key as to the facts and conclusions of law. Ms. Gonzalez requested a hearing. On March 31, 2006, this matter was referred to the Division of Administrative Hearings.

At hearing, Ms. Gonzalez testified in her own behalf and entered no exhibits into evidence. The Division of Real Estate presented no witnesses and entered one exhibit (Respondent's Exhibit numbered 1) into evidence. The undersigned took official recognition of Chapters 455 and 475, Florida Statutes (2005). A transcript was not ordered. At the request of the

parties, the time for filing post-hearing submissions was set for June 12, 2006, more than ten days following the conclusion of the hearing.

The parties timely filed their post-hearing submissions, which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On or about February 9, 2005, Ms. Gonzalez made application (Application) to the Division of Real Estate for a real estate sales associate license. At the time of the application, she was 50 years of age and was 51 years of age at the time of hearing.

2. The Application contains a "Background Information" section, which poses several questions. Question 1 provides in pertinent part:

   Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. . . .

   
   

3. Ms. Gonzalez responded yes to Question 1. She disclosed that, in 1992, she was charged with credit card fraud

   in another state and the disposition was a fine; that on January 22, 1993, she was charged with conspiracy to distribute cocaine and failure to appear, and the disposition was 108 months in prison for the conspiracy and 21 months for the failure to appear to run consecutively with the 108-month sentence; and that on July 20, 1994, she was charged with conspiracy to distribute cocaine and the disposition was 121 months in prison, with this charge and the former charge running concurrently.

4. Ms. Gonzalez does not know if the credit card fraud was a felony but admits that the other two crimes were felonies. Ms. Gonzalez admits that she pled guilty to her crimes and accepts full responsibility for her actions.

5. At hearing, Ms. Gonzalez testified that her troubles began in 1993 when her husband was involved in a tragic car accident, which left him in a vegetative state. She experienced financial difficulty and suffered emotionally, resulting in her making poor decisions.

6. Furthermore, Ms. Gonzalez disclosed that she served a total of eight years and two months in prison for the conspiracy charge of July 20, 1994. No disciplinary actions were taken against her during her time in prison, and she took courses to improve herself.

7. Ms. Gonzalez was released from federal prison in April

   2004. She is currently on supervised released for the conspiracy charge of January 22, 1993, and has three years remaining on her supervised probation. Her probation officer is aware of her application for licensure as a real estate sales associate and supports her licensure.

8. As a term of her probation, Ms. Gonzalez is required to perform community service hours, which she does by working with handicapped children. She finds working with the children rewarding and intends to continue working with them when her community service hours have been completed.

9. Ms. Gonzalez is currently working in the mortgage business as a mortgage loan processor and has been for the past two years. She is in a position of trust and interacts with the public on a daily basis.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

11. Section 475.17, Florida Statutes (2005), provides in pertinent 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 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 . . . 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 [Florida Real Estate 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.

    
    

12. Section 475.25(1), Florida Statutes (2005), provides the grounds upon which an application for licensure can be denied and provides in pertinent part:

    1. The commission [Florida Real Estate Commission] may deny an application for licensure, . . . if it finds that the licensee, registrant, permittee, or applicant:

       
       

       * * *

       
       

       (b) Has been guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence, or breach or trust in any business transaction in this state or any

       other state . . .

       
       

       * * *

       
       

       (f) Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed broker or sales associate, or involves moral turpitude or fraudulent or dishonest dealing. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.

       
       

13. Ms. Gonzalez contends that "because of lapse of time [since her convictions] and subsequent good conduct and reputation, or other reason deemed sufficient that the interest of the public and investors will not likely be endangered" by approving her Application for a real estate sales associate license. However, the Division of Real Estate contends to the contrary.

14. The general rule is that "the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." Florida Department of

    Transportation v. J. W. C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Ms. Gonzalez has the burden of proof by establishing through a preponderance of evidence that she has been rehabilitated and that she should be granted a real estate sales associate license. Department of Banking and Finance,

    Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996); Antel v. Department of

    Professional Regulation, Florida Real Estate Commission, 522 So. 2d 1056, 1058 (Fla. 5th DCA 1988); J. W. C. Company, Inc.,

    supra.; § 120.57(1)(j), Fla. Stat. (2006).

    
    

15. As to lapse of time, a case that provides guidance is Antel, supra. Antel made application for a real estate license in 1986 and, prior to making application, she had only been released from prison (convicted of manslaughter) for three months and one year (1987) at the time of hearing, but her parole release date was in 1993. The statutory provisions involved were Sections 475.17(1)(a) and 475.25(1)(f), Florida Statutes (1985). The Commission denied Antel's licensure because she had been convicted of a crime involving moral turpitude and because insufficient evidence was presented at hearing of her rehabilitation. The court upheld the denial of her application, holding that the conviction of manslaughter constituted a crime involving moral turpitude; and that, because of the short period of time since her release and the scant record at hearing, including her work record associated with real estate after prison, Antel had failed to establish her rehabilitation and right to be licensed. Furthermore, the court held that Antel's rehabilitation need not wait until she completed her parole.

16. Conduct involving moral turpitude has been determined by the Florida Supreme Court to include felony-credit card fraud and felonies involving illegal drugs, such as cocaine and marijuana. See The Florida Bar v. Bryan, 506 So. 2d 395 (Fla. 1987); The Florida Bar v. Nahoom, 523 So. 2d 1137 (Fla. 1988); The Florida Bar v. Weintraub, 528 So. 2d 367 (Fla. 1988).

17. In the instant case, at the time of hearing,

    
    

    Ms. Gonzalez had been released from prison for two years, and had three years remaining on supervised probation. Based on Antel, supra, her rehabilitation need not wait until she completes her parole; however, the time period since

    Ms. Gonzalez's release from prison has been short and is determined insufficient for rehabilitation.

18. Further, the evidence presented, regarding her work history was scant and was insufficient to make a well-reasoned determination as to whether the public and investors would likely be endangered by granting her licensure. More detailed evidence regarding her duties and responsibilities and day-to- day activities and interaction with the public would have been helpful, although it is commendable that Ms. Gonzalez's probation officer supports her licensure. However, based on Antel, supra, the evidence is insufficient to demonstrate rehabilitation.

19. The evidence failed to demonstrate that, since being released from prison, Ms. Gonzalez has shown good conduct and reputation.

20. Consequently, the evidence fails to demonstrate that the interest of the public and investors will not likely be endangered by approving her application for licensure as a real

estate sales associate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional, Division of Real Estate enter a final order denying the application of Lilia A. Gonzalez for licensure as a real estate sales associate.

DONE AND ENTERED this 6th day of July, 2006, in Tallahassee, Leon County, Florida.

S

ERROL H. POWELL

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 6th day of July, 2006.

COPIES FURNISHED:

Daniel Villazon, Esquire Daniel Villazon, P.A.

1020 Verona Street

Kissimmee, Florida 34741

Thomas Barnhart, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Josefina Tamayo, General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 Monroe Street

Tallahassee, Florida 32399-0792

Michael E. Murphy, Director Division of Real Estate

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

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: 06-001140

Orders for Case No: 06-001140