STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHONDA S. DIETZ, )

)

Petitioner, )

)

vs. )

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 07-3798

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this case on September 27, 2007, in Orlando, Florida, before Administrative Law Judge R. Bruce McKibben 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 32399-1050

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner's real estate broker's license application should be approved or denied.

PRELIMINARY STATEMENT

Petitioner has held a real estate sales associate's license in Florida since 2001. In May 2006, Petitioner applied for a real estate broker's license. That application was not approved. In May 2007, Petitioner again applied for a broker's license. The Florida Real Estate Commission denied Petitioner's re-application, and this proceeding ensued.

At final hearing, Petitioner called three witnesses, including herself, Hazel Phillips and Gerri Brown. Respondent did not call any witnesses at final hearing. The parties stipulated to the introduction of one composite exhibit containing 53 pages. The exhibit was accepted into evidence as Respondent's Exhibit 1.

No transcript of the final hearing was ordered. The parties' Proposed Recommended Orders, due on October 8, 2007, were duly-filed and considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Rhonda S. Dietz, is a 36-year-old woman who currently holds a real estate sales associate's license. She was first licensed by the State of Florida in December 2001 and has held her license in good standing since that time.

2. At the time Petitioner obtained her sales associate license, she disclosed in her application that she had a

   criminal background. That background included two grand larcenies, possession of a controlled substance, failure to appear, violation of probation, and obtaining property with a worthless check. Each of the offenses will be further discussed below.

3. Despite the criminal history, Respondent approved Petitioner's sales associate's license, and Petitioner has been selling real estate for the past six years.

4. In 2006, Petitioner first applied for a real estate broker's license. Petitioner maintains that in her 2006 application, she disclosed each of the aforementioned events in her criminal history.1 Nonetheless, her application was denied.

5. In May 2007, Petitioner again filed an application for a real estate broker's license. That application clearly contained documentary evidence of her entire criminal history. The events in that history are hereby discussed:

6. The first grand larceny in Petitioner's background was related to the purchase of goods from a K-Mart in 1994 with a bad check belonging to a roommate. Upon discovering the check was bad, Petitioner immediately turned herself in, made restitution, and paid court costs. She was sentenced to five years' probation for that charge.

7. The second grand larceny involved allegations in 1994 by Petitioner's then-current roommates that Petitioner stole

   property from them when she moved out of the residence. Although Petitioner denied the charge because the claim was merely retaliation by her roommates for moving out, she agreed to a plea bargain at the advice of counsel. Again, she was given five years' probation and made to pay restitution.

8. In 1998, Petitioner was charged with possession of a controlled substance: a vial of testosterone and some pain pills. She explained that these drugs came from a pharmacy where she was working. The pharmacy specialized in treatment of AIDS patients. She had the drugs in her possession so she could turn them over to a medical group that could disperse them to AIDS patients. The pharmacy supported Petitioner and paid for her defense against the possession charge. Petitioner was sentenced to 24 months' probation, court costs, and 50 hours of community service for that charge.

9. Petitioner also had a probation violation in 1998 for failing to appear and for failing to pay a fine related to one of the aforementioned charges. She did not pay the fine due to lack of funds. She failed to appear due to lack of notice. She was placed on ten months' house arrest for the violation of probation.

10. Petitioner met all other conditions of her probation and has not had any criminal activity since the charges listed

    above. She does not deny the existence of her prior criminal history and has not attempted to hide it from Respondent.

11. When Petitioner applied for a broker's license in 2005, she filed an application that included her criminal history. The application disclosed all of the charges addressed above. Respondent confirmed the charges by referring to a Florida Department of Law Enforcement (FDLE) report.

12. When Petitioner re-applied in 2007, she personally obtained a FDLE report on her criminal background, which she submitted along with her application. Again, she listed all of her prior history in the application. There is no competent evidence to suggest otherwise.

13. Since the time of her last criminal charge, Petitioner has been gainfully employed. She has worked in an office doing medical billing, in a pharmacy, and as a real estate agent. In her current position, she has been entrusted with large sums of money for clients. She has had no adverse employment actions taken against her. Her co-workers state that she has good moral character and is trustworthy.

14. Petitioner has passed the classroom work needed to become a broker; her application for licensure will complete that process. Meanwhile, she continues to sell real estate and is involved in an investor monitoring program. The broker's

    license will simply allow Petitioner to make a career move by expanding her capabilities in the area of real estate sales.

15. Respondent did not call any witnesses at the final hearing and did not refute or rebut the facts as stated by Petitioner.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2007).

17. Respondent, Florida Real Estate Commission, is the agency responsible for, inter alia, processing and approving broker's licenses in the State of Florida. See generally Chapter 475, Part I, Fla. Stat. (2006).2

18. Respondent maintains that Petitioner's broker license application should be denied based on the following reasons, which are set forth on a sheet attached to the Notice of Intent to Deny:

    B. Failing to demonstrate: honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing competent and qualified to conduct transactions and negotiations with safety to others. 475.17(1)(a), 475.181, F.S.

    
    

    * * *

    
    

    1. Convicted or found guilty or entered a plea of nolo contendere to, regardless of

       adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing.

       475.25(1)(f), 475.181, F.S.

       
       

    2. Applicant has not had sufficient lapse of time, without government supervision, to establish rehabilitation by being crime free.

    
    

    * * *

    
    

    M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him/her easy access to homes, families or personal belongings of the citizens of Florida. 455.201, F.S.

    
    

19. Petitioner was found guilty of crimes that involve moral turpitude. However, her explanations concerning those charges were both plausible and credible. The testimony of corroborating witnesses as to her character substantiates her claim of honesty and fitness to hold the broker's license. Further, there has been a substantial passage of time since her last criminal actions.

20. Each of the reasons set forth above as Respondent's basis for denying Petitioner's application is applicable to both sales associate's and broker's licenses. Therefore, inasmuch as Petitioner met the standards for a sales associate's license (and has held that license for over five years), a comparable

conclusion is reached as it relates to her broker's license application.

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Florida Real Estate Commission granting Petitioner's application for a real estate broker's license.

DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN 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 17th day of October, 2007.

ENDNOTES

1/ Respondent's counsel suggested at final hearing and in his Proposed Recommended Order that Petitioner had not disclosed the full extent of her criminal history. This conclusion was presumably based on his interpretation of documents within Joint Exhibit 1. However, no testimony was provided to refute or rebut Petitioner's claim that she did include the full history, so Petitioner's testimony is controlling.

2/ Unless specifically stated herein, all references to Florida Statutes shall be to the 2006 version.

COPIES FURNISHED:

Thomas Barnhart, 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

Poul Hornsleth, Chairman Real Estate Commission Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N Orlando, Florida 32801

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 07-003798

Orders for Case No: 07-003798