STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHAHZAD AHMED, )

)

Petitioner, )

)

vs. )

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 06-4799

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 2, 2007, in Orlando, Florida, before Jeff B. Clark, a duly-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: Claudel Pressa, Esquire

Office of the Attorney General 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 granted or denied.

PRELIMINARY STATEMENT

In an Order titled, "Notice of Intent to Deny," entered October 14, 2006, Respondent, Florida Real Estate Commission, denied the application of Petitioner, Shahzad Ahmed, for licensure as a real estate sales associate. The Commission stated that the application was denied based on the applicant's criminal record, the fact that the criminal history is recent in time, and the pattern of criminal behavior over an extended period of time.

On October 27, 2006, Respondent, through counsel, timely requested an administrative hearing, and, on November 27, 2006, Petitioner transmitted the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge. An Initial Order was sent to both parties on

November 28, 2006. On December 19, 2006, the case was scheduled for final hearing on February 2, 2007, in Orlando, Florida.

The final hearing took place as scheduled. Petitioner testified in his own behalf and offered the testimony of Eileen Matthias. Respondent's evidentiary presentation was limited to cross-examination of Petitioner and his witness. The parties jointly offered a composite exhibit, Petitioner's application file that contained relevant documents. It was marked as Joint Exhibit 1 and received into evidence. Official notice was taken of Chapter 475, Part 1, Florida Statutes (2006).

No transcript of the proceedings was filed with the Division of Administrative Hearings. Both parties timely filed Proposed Findings of Fact and Conclusions of Law.

Unless otherwise noted, all references are to Florida Statutes (2006).

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made:

1. Respondent is the State of Florida entity responsible for certifying applicants seeking to qualify under Chapter 475, Florida Statutes, for licensure as real estate sales associates.

2. On or about April 19, 2006, Petitioner submitted his application for licensure as a real estate sales associate to Respondent.

3. In the application, Petitioner answered "yes" to a background question which asks, in pertinent part:

   Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? . . .

   
   

   If you answered "Yes," attach the full details including dates and outcome, including any sentence and conditions imposed, on a separate sheet of paper.

   
   

4. Petitioner provided information that indicated that he had been convicted of making a false statement to a federal

   grand jury in Brooklyn, New York, in October 2001. Petitioner spent one month in custody and has three years' supervised release on the federal charge. His federal supervision was terminated in December 2004. In addition, on July 29, 2003, Petitioner was arrested and charged with stealing a MP3 player from a Target department store. He pled nolo contendre to retail petit theft; adjudication of guilt was withheld. For this offense, he served two days in jail, served 270 days' probation, paid fines and court costs, did community service, and went to impulse control class.

5. Petitioner has been employed by The Orlando Sentinel, the daily newspaper in Orlando, Florida, for approximately four years. He delivers newspapers in an affluent residential neighborhood, has access to gated communities, and is aware when his customers are not at home. To some degree, this job has fiduciary implications.

6. His job supervisor holds him in high regard, considers him trustworthy, and would trust him regarding her real estate transactions.

7. Petitioner is a student at Valencia Community College.

   
   

8. Petitioner makes a good impression, appears to be contrite, and, for the past several years, has had no criminal involvement.

   CONCLUSIONS OF LAW

   
   

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

10. Because this case involves the denial of Petitioner's application for licensure as a real estate sales associate, it is his burden to prove by a preponderance of the evidence that he meets the minimum requirements for licensure. See Department of Banking and Finance, Division of Securities and Investor

    Protection v. Osborne Stern and Co., 670 So. 2d 932, 933-34 (Fla. 1996).

11. Subsection 475.181(2), Florida Statutes, provides that Respondent "may refuse to certify any applicant who . . . is subject to discipline under s. 475.25."

12. Pursuant to Subsection 475.25(1)(f), Florida Statutes, Respondent may discipline a licensee or deny an application for a real estate license if it finds that the applicant "[h]as been convicted or found guilty of . . . a crime in any jurisdiction which . . . involves moral turpitude or fraudulent or dishonest dealing."

13. In Pearl v. Florida Board of Real Estate, 394 So. 2d 189, 191 (Fla. 3d DCA 1981), the court found "that moral turpitude involves duties owed by man to society, as well as

    acts 'contrary to justice, honesty, principle, or good morals,'" and it held that "[c]rimes constituting violations of one's duties in dealings with members of society may be classified as crimes involving moral turpitude."

14. Based on the Findings of Fact herein, Petitioner has admitted to having been found guilty of the crimes of making false statements to a grand jury and petit theft. These crimes involve moral turpitude and dishonesty, and Respondent may, therefore, refuse to certify Petitioner for licensure pursuant to Subsections 475.181(2) and 475.25(1)(f), Florida Statutes.

15. However, Respondent's authority to deny an application for licensure is discretionary, as indicated by the Legislature's use of the word "may" in Subsections 475.181(2) and 475.25(1), Florida Statutes. Accordingly, Petitioner has the opportunity to establish that he is entitled to licensure by proving that he is "honest, truthful, trustworthy, and of good character." § 475.17(1)(a), Fla. Stat.

16. Based on the Findings of Fact herein, Petitioner has not proven by a preponderance of the evidence that he is trustworthy or of good character. Petitioner is apparently turning his life around and, perhaps, in time, he will be able to meet this burden of proving entitlement to licensure as a real estate sales associate. Cf. Antel v. Department of Professional Regulation, Florida Real Estate Commission,

522 So. 2d 1056 (Fla. 5th DCA 1988)(Even though applicant was convicted of crime involving moral turpitude, applicant may be granted a license if he proves rehabilitation).

RECOMMENDATION

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

RECOMMENDED that Respondent, Florida Real Estate Commission, enter a final order denying the application of Petitioner, Shahzad Ahmed, for licensure as a real estate sales associate.

DONE AND ENTERED this 2nd day of March, 2007, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

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 2nd day of March, 2007.

COPIES FURNISHED:

Claudel Pressa, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

Daniel Villazon, Esquire Daniel Villazon, P.A.

1020 Verona Street

Kissimmee, Florida 34741

Tom Barnhart, Esquire

Office of the Attorney General 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 801N Orlando, Florida 32801

Josefina Tamayo, General Counsel Department of Business and

Professional Regulation 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: 06-004799

Orders for Case No: 06-004799