STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADAM FOURAKER, )

)

Petitioner, )

)

vs. )

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 07-2459

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on August 6, 2007, by video teleconference at sites in Orlando and Tallahassee, Florida, before Lawrence P. Stevenson, 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: Thomas Barnhart, Esquire

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

STATEMENT OF THE ISSUE

The issue is 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 April 24, 2007, Notice of Intent to Deny.

PRELIMINARY STATEMENT

By issuance of a Notice of Intent to Deny, issued on April 24, 2007, the Florida Real Estate Commission ("Commission") advised Petitioner that his application for a real estate sales associate license was denied. Petitioner timely requested a formal hearing on the denial of his application, and on May 31, 2007, the Commission referred the matter to the Division of Administrative Hearings ("DOAH") for the assignment of an Administrative Law Judge to conduct a formal administrative hearing.

The final hearing was scheduled for and held on August 6, 2007. At the hearing, Petitioner testified in his own behalf and presented the testimony of Craig Ustler, Neal Barton, and Lisa Gould. The Commission presented no witnesses. Joint Exhibit 1, consisting of Petitioner's application package to the Commission, was the only exhibit admitted at the hearing.

Respondent's Exhibit 1, consisting of notes Petitioner had before him during his testimony, was submitted after the hearing and is hereby admitted. Official recognition was taken of Chapter 475, Florida Statutes (2006) and of Florida Administrative Code Chapter 61J-2.

No transcript of the final hearing was filed with DOAH.

The parties were given 10 days from the date of the hearing to file proposed recommended orders. The Commission timely filed a Proposed Recommended Order on August 16, 2007. Petitioner timely served his Proposed Recommended Order on the Commission, but, unbeknownst to him, his facsimile transmission to DOAH failed on August 16, 2007. Petitioner successfully filed his Proposed Recommended Order at DOAH on August 24, 2007. The Proposed Recommended Orders have been duly considered in the writing of this Recommended Order.

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 is 26 years old. He lives in Orlando and works as a server at Hue, an upscale restaurant located in downtown Orlando. Hue is owned by Urban Life Management, a company that owns several restaurants and a real estate brokerage company. Petitioner also serves as an office manager at the real estate office, and would work as a sales associate in that office after obtaining his license.

2. On or about August 28, 2006, Petitioner filed an application for licensure as a real estate sales associate with the Department of Business and Professional Regulation, Division of Real Estate ("Division"). On that application, he answered

   in the affirmative to question number one in the Background Information section. Question number one states, 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"?

3. By letter to Petitioner, dated September 8, 2006, the Division requested additional information from Petitioner regarding his answer to question number one. In response, Petitioner submitted documentation showing that he had been convicted in November 2002 of trafficking in amphetamine, particularly MDMA (ecstasy), in violation of Subsection 893.135(1)(f), Florida Statutes, a first degree felony.

4. Petitioner was sentenced to imprisonment for a period of 90 days, followed by 18 months of probation. Petitioner successfully completed his probation on July 14, 2004.

5. At the time of his offense, Petitioner was a 20-year old student at the University of Central Florida ("UCF"). On August 19, 2001, Petitioner acted as the middleman in a drug transaction, delivering 5,000 ecstasy pills to a purchaser for

   $41,250.00. Petitioner expected to receive about $5,000 for his participation in the deal. However, the prospective buyer of the pills was a confidential police informant, and Petitioner was arrested. As a consequence of his guilty plea, Petitioner was expelled from UCF.

6. Subsequent to his arrest, Petitioner cooperated with law enforcement authorities by acting as a confidential source. Petitioner's extensive cooperation led to a greatly reduced sentence based on the recommendations of law enforcement officials.

7. The drug trafficking conviction is Petitioner's only criminal offense.

8. Petitioner currently works two jobs. He works as a server at Hue in the evening and as office manager for the real estate company during the day. Both of Petitioner's supervisors testified in support of Petitioner's application.

9. Neal Barton is the general manager of Hue and has been Petitioner's direct supervisor at the restaurant since hiring him in August 2002. Mr. Barton testified that Petitioner disclosed his criminal record at the time he was hired.

   Mr. Barton testified that Petitioner is an exemplary employee, honest, reliable, and dedicated. Mr. Barton relies on Petitioner to train other servers, and to check their work.

10. Lisa Gould is Petitioner's supervisor at the real estate company. She has worked with Petitioner for approximately five months, and testified that Petitioner disclosed his criminal record to her. Ms. Gould testified that Petitioner is honest and hardworking. She would not hesitate to use Petitioner as a sales associate under her broker's license.

11. Craig Ustler, the president and owner of the companies that employ Petitioner, testified in support of Petitioner's application. Mr. Ustler is a real estate broker and appraiser, and testified that he would not hesitate to hire Petitioner as a sales associate.

12. In addition to working, Petitioner pursued higher education after serving his time in jail. In May 2004, he received his Associate in Arts degree from Valencia Community College. He then re-applied to UCF, and was admitted subject to disciplinary probation for his entire enrollment. As part of the readmission process, Petitioner was required to participate in therapy with Laura Riddle, a professional training consultant and "life coach." Ms. Riddle submitted a letter of support for Petitioner, in which she described him as honest, and a man of integrity and strong moral character.

13. Petitioner graduated from UCF with a degree in finance on May 4, 2007.

14. Petitioner attributed his criminal conduct to growing up in an environment of substance abuse that led him into a period of drug dependence. At the time of his arrest, Petitioner was an ecstasy user. Petitioner completed a six- month program at the Center for Drug Free Living in Orlando, as well as an aftercare program, and credibly testified that he has not used drugs since his arrest in August 2001.

15. Petitioner's license application was considered by the Commission at its meeting on March 21, 2007. Petitioner appeared at the Commission meeting and responded to questions from members of the Commission.

16. The Commission voted at the meeting to deny Petitioner's license application. The denial was memorialized in a Notice of Intent to Deny dated April 24, 2007.

17. The grounds for denial listed in the Notice of Intent to Deny included Petitioner's criminal record, as revealed in the license application; the recent nature of Petitioner's criminal offenses; and the fact that Petitioner is a convicted felon.

    CONCLUSIONS OF LAW

    
    

18. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes (2007).

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

20. Section 475.17, Florida Statutes (2006), sets forth the qualifications for 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.

    
    

21. Subsection 475.25(1)(f), Florida Statutes (2006), 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."

22. In the instant case, the Commission preliminarily denied Petitioner's application for licensure based on his criminal history and the recent nature of his offenses.

23. The evidence established that Petitioner was convicted in November 2002, of trafficking in amphetamine, in violation of Subsection 893.135(1)(f), Florida Statutes, a first degree felony.

24. Such a crime is one "which . . . involves moral turpitude," within the meaning of Subsection 475.25(1)(f), Florida Statutes (2006). In Milliken v. Department of Business and Professional Regulation, 709 So. 2d 595, 597 (Fla. 5th DCA 1998), the court stated:

    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. See Pearl v.

    Florida Board of Real Estate, 384 So. 2d 189 (Fla. 3d DCA 1981).

    We have noted the difficulty of delineating in a general way which crimes are, or are not, ones involving "moral turpitude." See Nelson v. Department of Business and Professional Regulation, 707 So. 2d 378 (Fla. 5th DCA 1998). 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. (Citation omitted).

    
    

25. 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 Subsection 475.17(1)(a), Florida Statutes (2006), and therefore his application for such licensure should be denied pursuant Subsection 475.25(1)(f), Florida Statutes (2006), 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 932, 934 (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.")

26. Petitioner has met his burden of proof. Petitioner committed a single, albeit serious, criminal offense in 2001. He credibly testified as to the reformation his life has undergone since his arrest. Petitioner cooperated with the authorities, completed his jail term and probation without

    incident, and worked two jobs while completing his undergraduate degree. Every witness who appeared at the hearing spoke highly of his honesty, character, and work ethic. Two licensed real estate brokers expressed their willingness to employ Petitioner as a sales associate.

27. Based on all the evidence, it does not appear likely that Petitioner's being granted a real estate sales associate license will endanger the interest of the public and investors.

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 granting Petitioner's application for licensure as a real estate sales associate.

DONE AND ENTERED this 7th day of September, 2007, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 7th day of September, 2007.

COPIES FURNISHED:

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

Daniel Villazon, Esquire Daniel Villazon, P.A.

1020 Verona Street

Kissimmee, Florida 34741

Nancy S. Terrel Hearing Officer

Department of Business and Professional Regulations

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel Department of Business and

Professional Regulations Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Poul Hornsleth, Chairman Real Estate Commission Department of Business and

Professional Regulations

400 W. Robinson Street, Suite 801N 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: 07-002459

Orders for Case No: 07-002459