STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL DE LA GARZA, )

)

Petitioner, )

)

vs. ) Case No. 06-3813

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on November 17, 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: Daniel Villazon, Esquire

1020 Verona Street

Kissimmee, Florida 34741

For Respondent: Claudel Pressa, 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 on the ground set forth in the Florida Real Estate Commission's August 14, 2006, Notice of Intent to Deny.

PRELIMINARY STATEMENT

On August 14, 2006, through the issuance of a Notice of Intent to Deny, the Florida Real Estate Commission (Commission) advised Petitioner that it had preliminarily decided to deny Petitioner's application for licensure as a real estate sales associate based on his criminal history and failure to show rehabilitation. The Commission further advised Petitioner in its Notice of Intent to Deny of his right to request a hearing on its proposed action. On September 19, 2006, Petitioner, through counsel, requested that "the matter be referred to [DOAH] to assign an Administrative Law Judge to conduct a formal hearing pursuant to section 120.57 Florida Statutes."1

As noted above, the hearing was held on November 17, 2006.2 Petitioner was the lone witness to testify at the hearing. In addition to Petitioner's testimony, one exhibit (Joint Exhibit

1. was offered and received into evidence.

   
   

   At the close of the taking of evidence, the undersigned established a December 4, 2006, deadline for the filing of proposed recommended orders.

   Petitioner and Respondent timely filed their Proposed Recommended Orders on December 4, 2006.

   FINDINGS OF FACT

   
   

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

   1. Petitioner recently turned 36 years of age.

      
      

   2. He currently resides in Miami-Dade County, Florida, where he is employed by a real estate development company in a position of trust, performing various administrative duties, including website maintenance, data entry, and delivery of payroll.

   3. Before moving to Florida, Petitioner resided, and owned a business, in the Lake George area of New York State.

   4. In 2002, Petitioner was arrested, along with his roommates with whom he had shared a Lake George home rented in his name, and charged in the United States District Court for the Northern District of New York with having, "[i]n or around March 2002, in the State and Northern District of

      New York, . . . knowingly and intentionally combined, conspired, confederated and agreed with others [his roommates] to possess with intent to distribute and to distribute a quantity of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21,

      United States Code, Section 841(a)(1) [and] [i]n violation of Title 21, United States Code, Section 846."

   5. On June 12, 2003, after having entered a guilty plea, Petitioner was adjudicated guilty of the criminal conduct charged3 and sentenced to six months' house arrest and five years' probation. In addition, he was ordered to pay a fine of

      $10,000.00.

      
      

   6. Prior to his sentencing, Petitioner had cooperated with the government. Consequently, he received a more lenient sentence than he otherwise would have been given.

   7. Unlike Petitioner, Petitioner's roommates received prison time for their role in the conspiracy.

   8. Petitioner has successfully completed the house arrest portion of his sentence. He has also paid his fine in full. He is still on probation, however. His probation is scheduled to end June 1, 2008. So far, he has been compliant with the terms and conditions of his probation. His probation officer has expressed to him her support of his efforts to obtain licensure as a real estate sales associate.

   9. Petitioner moved to Florida because he wanted a "new start." He is trying to "build a reputation" as a solid citizen. He is a member of a local church and is involved in civic and charitable activities in the community.

      CONCLUSIONS OF LAW

      
      

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

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

   12. Section 475.17, Florida Statutes, 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.

       
       

   13. Furthermore, Section 475.25(1)(f), Florida Statutes, 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."

   14. In the instant case, the Commission preliminarily denied Petitioner's application for licensure based on his criminal history and failure to show rehabilitation.

   15. Petitioner requested (and was granted) a hearing before a DOAH Administrative Law judge to challenge this preliminary determination.

   16. The evidence adduced at that hearing indisputably reveals (as Petitioner disclosed in his application materials) that in June 2003, he was convicted, in federal district court,

       of conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846.

   17. 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, 531 (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.'").

   18. 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, and therefore his application for such licensure should be denied pursuant Section 475.25(1)(f), Florida Statutes, 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 § 120.57(1)(j), Fla. Stat. ("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 ").

   19. Petitioner failed to meet his burden of proof.

       
       

   20. Notwithstanding the steps he has taken in the right direction, an insufficient amount of time has passed since the commission of his crime (for which he is still on probation) to enable Petitioner to show that he is completely rehabilitated and that the interest of the public and investors will not likely be endangered if he is granted the license he seeks.

   21. 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 20th day of December, 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 20th day of December, 2006.

ENDNOTES

1 All references to Florida Statutes in this Recommended Order are to Florida Statutes (2006).

2 There was no court reporter at the hearing. The Commission met its obligation under Section 120.57(1)(g), Florida Statutes,

to "preserve all testimony in the proceeding" by having its counsel of record tape record the hearing.

3 To the extent that Petitioner testified at hearing in the instant case that he did not "knowingly and intentionally" participate in any conspiracy with his roommates to possess and distribute cocaine, this testimony has been rejected because it is inconsistent with his previous plea of guilty in federal district court. See Paterno v. Fernandez, 569 So. 2d 1349, 1351 (Fla. 3d DCA 1990) ("In pleading guilty to an information charging her with the crime of grand theft in the first degree, the defendant admitted all facts contained in the information, that she committed the crime of grand theft in the first degree when she took $20,000.00 or more from the plaintiffs with the intent to deprive them of the right to their property and appropriated the property for her use or for the use of others. Thus, we find that the facts underlying the criminal offense were stipulated through a guilty plea.").

COPIES FURNISHED:

Daniel Villazon, Esquire 1020 Verona Street

Kissimmee, Florida 34741

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

Tallahassee, Florida 32399-1050

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

Professional Regulation

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: 06-003813

Orders for Case No: 06-003813