STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Jeff B. Clark, held a final hearing in this matter on July 22, 2008, in Orlando, Florida.

APPEARANCES

For Petitioner: Kerey Carpenter, Esquire

1551 Sandspur Road

Maitland, Florida 32751

For Respondent: Thomas Barnhart, Esquire

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

STATEMENT OF THE ISSUE

Should Petitioner, Ariella Rubinger's, application for a real estate sales associate license be granted.

PRELIMINARY STATEMENT

On May 7, 2008, Respondent, Florida Real Estate Commission, denied Petitioner, Ariella Rubinger's, license to be a real estate sales associate. On May 29, 2008, Petitioner filed a Petition for Formal Hearing contesting the denial. On June 4, 2008, the matter was referred to the Division of Administrative Hearings.

On June 6, 2008, an Initial Order was sent to both parties requesting mutually convenient times for the final hearing.

Based on the response of the parties, on June 17, 2008, the case was scheduled for final hearing on July 22, 2008, in Orlando, Florida.

The case was presented as scheduled. Neither party presented any witnesses. Petitioner offered one exhibit which was admitted into evidence and marked Petitioner's Exhibit 1.

The Transcript of Proceedings was filed with the Clerk of the Division of Administrative Hearings on August 25, 2008. On September 5, 2008, Respondent's Motion for Extension of Time to File Proposed Recommended Order was granted extending the filing time to September 12, 2008. Both parties filed Proposed Recommended Orders.

All references are to Florida Statutes (2007), unless otherwise noted.

FINDINGS OF FACT

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

1. Petitioner is an applicant for licensure as a real estate sales associate. Her application was filed on December 5, 2007.

2. Respondent is the state agency responsible for licensing real estate professionals in the State of Florida and has the statutory authority to approve or deny Petitioner's application.

3. On July 25, 2007, the Broward County, Florida Circuit Court, returned a four-count information charging Petitioner with DUI Manslaughter and Vehicular Homicide.

4. The charges are still pending in Broward County.

   
   

5. On May 7, 2008, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are "Unpersuasive Testimony" and "Crimes Recent." In addition, it indicates that the "[a]pplicant is currently facing charges of DUI Manslaughter and Vehicular Homicide in the Broward County Circuit Court."

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in

   accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes (2008).

7. Petitioner has the burden to prove by a preponderance of the evidence that she satisfies the requirements for licensure as a real estate sales associate. See Dept. of Banking and Finance v. Osborne, Stern, and Co., 670 So. 2d 932, 934 (Fla. 1996); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

8. Section 475.181 provides in pertinent part:

   
   

   1. The department shall license any applicant whom the commission certifies, pursuant to subsection (2), to be qualified to practice as a . . . sales associate.

   2. The commission shall certify for licensure any applicant who satisfies the requirements of ss. 475.17, 475.175, and

      475.180. . . .

      
      

9. Subsection 475.17(1)(a) requires an applicant for licensure to 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." The statute further provides that an applicant is "deemed not to be qualified" for licensure if:

   [T]he applicant's . . . license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, . . . 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 . . . .

   
   

10. Subsection 475.25(1)(f) authorizes the Commission to deny an application for licensure if it finds that the applicant has "been convicted or found guilty of, or entered a plea of nolo contenere to, regardless of adjudication, a crime in any jurisdiction which, . . . involves moral turpitude "

11. Subsection 455.213(3) provides:

    
    

    (3) The board, or the department when there is no board, may refuse to issue an initial license to any applicant who is under investigation or prosecution in any jurisdiction for an action that would constitute a violation of this chapter or the professional practice acts administered by the department and the boards, until such time as the investigation or prosecution is complete. . . . (Emphasis added.)

    
    

12. Section 475.25 provides in pertinent part:

    
    

    1. The commission may deny an application for licensure, . . . if it finds that the

       . . . applicant:

       
       

       * * *

       
       

       (f) Has 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. . . .

       (Emphasis added.)

13. Manslaughter is a crime of moral turpitude. See Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So. 2d 1056 (Fla. 5th DCA 1988); Kiner v. State Board of Education, 344 So. 2d 656 (Fla. 1st DCA 1977).

14. While there is case law affirming the "broad latitude" accorded state agencies with licensing authority,

    Astral Liquors, Inc. v. Dept. of Business Regulation, 463 So. 2d 1130 (Fla. 1985), there is also case law urging strict construction because of the penal nature of a license denial, Vetter v. Department of Business and Professional Regulation, Electrical Contractors' Licensing Board, 920 So. 2d 44 (Fla. 2nd DCA 2006).

15. Petitioner has not been convicted, but she is being prosecuted for a serious crime of moral turpitude.

16. Subsection 455.213(3) authorizes the refusal to issue an initial license while the applicant is under prosecution for a violation of this chapter or the professional practices acts (Chapter 475), until the prosecution is complete. Subsection 475.25(1)(f) clearly contemplates denying an application for licensure where there a crime of moral turpitude. The clear meaning of the combined statutes is that there is no requirement for conviction, just prosecution of a crime of moral turpitude for the refusal to issue an initial license until the prosecution is complete.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Ariella Rubinger's, application for licensure be held in abeyance until the prosecution of the crimes pending in Broward County Circuit Court is resolved.

DONE AND ENTERED this 22nd day of October, 2008, 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 22nd day of October, 2008.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-1050

Kerey Carpenter, Esquire 1551 Sandspur Road

Maitland, Florida 32751

S.W. Ellis, Chairman

Florida 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 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: 08-002674

Orders for Case No: 08-002674