STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROLANDO J. SANABRIA, )

)

Petitioner, )

)

vs. ) Case No. 06-1222

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on June 14, 2006, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: No Appearance

For Respondent: Thomas Barnhardt, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a real estate sales associate should be denied based on his criminal history.

PRELIMINARY STATEMENT

On February 13, 2006, through the issuance of a Notice of Denial, the Florida Real Estate Commission (Commission) advised Petitioner that it had preliminarily decided to deny his application for licensure as a real estate sales associate based on his "criminal history." The Commission further advised Petitioner in its Notice of Denial of his right to "request a hearing pursuant to Section 120.57(1), Florida Statutes" (2005) to "seek review" of the Commission's decision. By letter dated March 20, 2006, Petitioner made such a request. On April 11, 2006, the case was referred to DOAH for the "assign[ment of] an administrative law judge for the purpose of hearing the disputed issues of fact arising from the [Commission's] Notice of Denial" of Petitioner's application for licensure.

The hearing was scheduled by video teleconference at sites in Miami and Tallahassee, Florida, for June 14, 2006, commencing at 9:00 a.m. Petitioner and the Commission were provided with written notice of the scheduled hearing in accordance with Section 120.569(2)(b), Florida Statutes (2005). Such notice was in the form of a Notice of Hearing by Video Teleconference

mailed on April 26, 2006, to Petitioner and the Commission's counsel of record, Thomas Barnhardt, Esquire.

The Commission appeared at the hearing, which was held as scheduled on June 14, 2006, through its counsel of record, Mr. Barnhardt. Petitioner, on the other hand, did not make an appearance at the hearing, either in person or through counsel

or any other authorized representative. (The undersigned waited approximately 45 minutes for Petitioner to make an appearance before going on the record.)

The Commission offered into evidence one exhibit (Respondent's Exhibit 1), which was received by the undersigned. It offered no other evidence.

At the close of the taking of evidence, the undersigned established a deadline (June 16, 2006) for the filing of proposed recommended orders.

The Commission filed its Proposed Recommended Order on June 16, 2006. To date, Petitioner has not filed any post- hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. On July 6, 2000, in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001, Petitioner was convicted of one count of "conspiracy to possess

   with intent to distribute cocaine" in violation of 21 U.S.C. § 846 (which crime had been committed over a period ending October 27, 1999) and sentenced to 87 months in federal prison. He was subsequently ordered to "self surrender at the facility designated by the Bureau of Prisons on August 21, 2000."

2. On September 6, 2005, Petitioner filed with the Commission an application for licensure as a real estate sales associate.

3. At the time he filled out his application he had not completed his federal prison sentence.

4. The application materials he submitted revealed his conviction and sentence in United Stated District Court for the Southern District of Florida Case No. 99-777-CR-SEITZ/001.

5. Having determined that Petitioner's "criminal history" constituted "grounds for denial of [Petitioner's] license application, the Commission, on February 13, 2006, issued its Notice of Intent to Deny the application.

   CONCLUSIONS OF LAW

   
   

6. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes (2005).

7. Petitioner has applied to become licensed as a real estate sales associate in Florida.

8. Section 475.17, Florida Statutes (2005), sets forth the "qualifications for [such] licensure." Subsection (1)(a) of the statute provides as follows:

   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.

   
   

9. Furthermore, Section 475.25(1)(f), Florida Statutes (2005), provides that an application for licensure as a real estate sales associate may be denied if the applicant "[h]as 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."

10. In the instant case, the Commission preliminarily denied Petitioner's application for licensure based on his "criminal history."

11. Petitioner requested (and was granted) a hearing conducted in accordance with Sections 120.569 and 120.57(1), Florida Statutes (2005), to challenge this preliminary determination.

12. The evidence adduced at that hearing indisputably reveals (as Petitioner disclosed in his application materials) that in 2000 he was convicted, in federal district court, of one count of "conspiracy to possess with intent to distribute cocaine" in violation of 21 U.S.C. § 846.

13. Such a crime is one "which . . . involves moral turpitude," within the meaning of Section 475.25(1)(f), Florida Statutes (2005). See Milliken v. Department of Business and

    Professional Regulation, 709 So. 2d 595, 597 (Fla. 5th DCA 1998)("Milliken also argues that possession of cocaine with intent to distribute is not a crime which violates section 475.25(1)(f) because it does not involve moral turpitude or fraudulent or dishonest dealing. That section provides that a real estate license may be suspended or revoked if a licensee has been convicted of a crime 'which directly relates to activities of a licensed broker or salesperson, or involves moral turpitude or fraudulent or dishonest dealing.' Not every crime provides a basis for suspension of a real estate

    license. . . . In this case, Milliken did more than merely possess a small amount of illegal drugs. He was convicted of possessing cocaine with the intent to sell. Under contemporary community standards, the evil of narcotics trafficking is well known and accepted. We have no problem with concluding it is a crime involving moral turpitude."); see also In re Conviction of Passemheim, No. S014161, 1990 Cal. LEXIS 1386 (Cal.

    1990)("Patrick M. Passemheim having been convicted of violating

    
    

    21 United States Code section 846, a crime involving moral turpitude, . . . ."); People v. Young, 732 P.2d 1208, 1210 (Colo. 1987)("[W]e have held that attorney misconduct concerning the trafficking in illegal drugs is criminal conduct that involves moral turpitude . . . ."); Matter of Roberson, 429 A.2d

    530 (D.C. 1981)("This court has previously held that the crime

    of conspiracy to possess a controlled substance, with intent to distribute, is one inherently involving moral turpitude."); and State v. Hennings, 475 P.2d 926, 930 (Wash. 1970)("Without doubt, by contemporary community standards possession and sale of narcotics, unless authorized by law, is a crime which by its very nature involves 'moral turpitude.'").

14. Accordingly, in order to avoid a finding that, in light of his conviction, he does not meet the qualifications for licensure as a real estate sales associate set forth in Section 475.17(1)(a), Florida Statutes (2005), and therefore his application for such licensure should be denied pursuant Section 475.25(1)(f), Florida Statutes (2005), it was Petitioner's burden to establish at hearing, by a preponderance of the evidence, that, "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, . . . the interest of the public and investors will not likely be endangered" by the granting of his application. See Department of Banking and Finance, Division of Securities and Investor

    Protection v. Osborne Stern and Company, 670 So. 2d 930 (Fla. 1996)("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."); and Florida Department of Health and

    Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is on the

    party asserting the affirmative on an issue before an administrative tribunal. . . . 'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is, [a] preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'"); and Section 120.57(1)(j), Florida Statutes (2005)("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

15. Petitioner failed to meet his burden of proof. He did not appear at the final hearing, and no evidence was presented at the final hearing on his behalf.

16. His application for licensure therefore must be denied.

RECOMMENDATION

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

RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate.

DONE AND ENTERED this 19th day of June, 2006, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 19th day of June, 2006.

COPIES FURNISHED:

Rolando J. Sanabria

200 East 65th Street Hialeah, Florida 33013

Thomas Barnhardt, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Nancy B. Hogan, Chairman Division of Real Estate

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

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 06-001222

Orders for Case No: 06-001222