Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on March 25, 2009, in Fort Myers, Florida.
Daniel Villazon, P.A.
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The issue is whether Respondent should deny an application for a real estate sales associate license on the alleged grounds that, in violation of Subsections 475.17(1)(a), 475.181, and 475.25(1)(f), Florida Statutes (2008),1 the application discloses two felony convictions for crimes of moral turpitude, the
initial application omitted a misdemeanor conviction for driving under the influence (DUI), and the applicant’s explanation in mitigation of the incidents is allegedly unpersuasive.
By Notice of Intent to Deny (Notice of Denial) issued on December 10, 2008, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application for a real estate sales associate license. Petitioner timely requested a formal hearing, and Respondent referred the matter to DOAH to conduct the hearing.
At the hearing, Petitioner testified, presented the testimony of three witnesses, and submitted no exhibits for admission into evidence. Respondent called no witnesses and submitted one composite exhibit. The identity of the witnesses and exhibits and the rulings regarding each are reported in the official record of the hearing. Neither party requested a transcript of the hearing. Petitioner and Respondent timely filed their respective Proposed Recommended Orders on April 6, 2009.
Respondent is the state agency responsible, in relevant part, for licensing real estate sales associates in the State of Florida, pursuant to Chapter 475. Petitioner applied for a real
estate sales associate license on March 8, 2007, and Respondent proposes in this de novo proceeding to deny the application.
Respondent states several grounds for the proposed denial of Petitioner’s application. First, the application discloses two felony convictions for crimes of moral turpitude, and the crimes would have been grounds for revoking or suspending a real estate license. Second, Petitioner omitted a DUI misdemeanor conviction from the initial application before the application was complete. Third, Respondent claims the applicant has not demonstrated honesty, truthfulness, trustworthiness, good character, and a good reputation for fair dealing. Finally, Respondent considers the applicant’s testimony in explanation or mitigation of the crime and omission in his initial application to be unpersuasive.
The application discloses two felony convictions on November 23, 1993. When Petitioner was approximately 18 years old, Petitioner and three other teenagers committed aggravated battery with a deadly weapon and armed robbery against two male adults in Lee County, Florida. One of the teenagers struck each victim with a baseball bat; took articles of clothing, jewelry, wallets, and fishing rods and reels from each victim; and divided the articles among the perpetrators. Each teenager was under the influence of alcohol and controlled substances,
including marijuana and other drugs. The victims required hospital treatment.
The two felony convictions involve crimes of moral turpitude. The crimes exhibit inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. The two felony convictions are grounds for revoking or suspending a real estate license.
On March 29, 1995, Petitioner pled nolo contendere to two counts of robbery with a deadly weapon and two counts of aggravated battery. The court adjudicated Petitioner guilty, sentenced Petitioner to 10 years’ imprisonment, to be followed by two years of probation, and ordered Petitioner to pay
$1,500.00 in restitution to the victims.
When the court convicted Petitioner on March 29, 1995, Petitioner was not qualified for a real estate sales associate license within the meaning of Subsection 475.17(1)(a). The statute deems that Petitioner is not qualified for a real estate sales associate license today, unless by lapse of time and subsequent good conduct and reputation or other sufficient reason, it appears the interest of the public and investors will not likely be endangered by licensing Petitioner. For reasons stated hereinafter, a preponderance of evidence shows the crimes in 1993 do not make it likely that licensing Petitioner as a real estate sales associate will endanger the public.
The testimony of Petitioner in explanation and mitigation of the crimes committed in 1993 is persuasive. Petitioner did not inflict physical harm on either of the victims. Petitioner’s participation was limited to driving the vehicle, which was his mother’s car, used in the commission of the crimes and accepting a portion of the stolen property. Petitioner was intimidated by the teenager who used the baseball bat on the victims, and that teenager was under the influence of alcohol and controlled substances.
When arrested, Petitioner admitted his guilt to police and cooperated fully in the investigation. When sentenced, Petitioner faced the victims in open court, admitted his guilt, accepted responsibility, and apologized to the victims and their family members.
Sufficient time has lapsed for Petitioner to be rehabilitated and to overcome the statutory presumption of unfitness. Approximately 15 and 14 years have passed, respectively, from the dates of the commission and conviction of the crimes. Almost six years have passed from the successful completion of probation on June 5, 2003.
Petitioner’s subsequent good conduct after 1993 demonstrates his rehabilitation. Petitioner paid the $1,500.00 in restitution ordered by the court. Petitioner was released
from prison in late 1999, after serving four years and eight months of his 10-year sentence.
While in prison, Petitioner took classes in drafting, anger management, and life skills. Petitioner also attended alcoholics anonymous and narcotics anonymous. Petitioner taught other inmates and read extensively. Petitioner also assisted with the development of a volley ball team for prisoners.
Upon release from prison in late 1999, Petitioner moved to North Carolina for approximately two years, primarily to avoid contact with his former peer group. Petitioner worked two jobs and attended college where he continued to study drafting.
In North Carolina, Petitioner was injured in an automobile accident and suffered severe head injuries. Petitioner was in a coma for nine days.
After recovering from his injuries, Petitioner returned to his family in Lee County, Florida. Petitioner has been gainfully employed, self-supportive, and has been working for the past couple of years in a real estate office as an unlicensed assistant.
Petitioner has earned a reputation for honesty, truthfulness, trustworthiness, and good character and has earned a good reputation for fair dealing in a relationship of trust and confidence with safety to investors. Petitioner’s
girlfriend and grandmother are each licensed by Respondent as real estate brokers. Both licensees recommend Petitioner for licensure. Two disinterested licensees also recommend Petitioner for licensure.2
On February 14, 2007, Petitioner was convicted of a DUI misdemeanor. Petitioner paid the court-ordered fine and satisfactorily completed his sentence of community service and probation.
A preponderance of evidence does not show that the misdemeanor conviction for DUI is a crime of moral turpitude or one that directly relates to the duties of a real estate sales associate. Respondent did not cite any legal authority to show that the DUI conviction would be a ground for license revocation or suspension, if Petitioner were licensed. Finally, the DUI conviction does not evidence a lack of honesty, truthfulness, trustworthiness, good character, or fair dealing.
The initial application from Petitioner omitted the DUI conviction. Petitioner corrected the omission before the application became final and before Respondent formulated any proposed agency action.
Respondent notified Petitioner by letter dated
August 5, 2008, of the omission. The letter notified Petitioner that the application was incomplete without documentation of the DUI conviction and requested the documentation needed to
complete the application. Petitioner promptly complied and provided the requested documentation on August 22, 2008. If the initial application had disclosed the DUI conviction, Respondent cited no legal authority that would make the DUI conviction a ground for denying the application.
Petitioner did not omit the DUI conviction from the initial application through a lack of candor. The testimony of Petitioner was credible and persuasive.3
The omission of the DUI conviction from the initial application evidences a lack of diligence. Any incompetence or lack of diligence that remains after August 22, 2008, when Petitioner completed the license application, can be corrected through a probationary license authorized in Florida Administrative Code Rule 61J2-24.001(2).
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1). DOAH provided the parties with adequate notice of the final hearing.
Petitioner bears the ultimate burden of proving his entitlement to a license. Florida Department of Transportation
v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Petitioner must show by a preponderance of the evidence that he satisfied relevant statutory criteria to be licensed as a real estate sales associate.
Petitioner satisfied his burden of showing that the 1995 felony convictions do not disqualify Petitioner from being licensed as a real estate sales associate. Subsection 475.17(1)(a) provides in relevant part that
Petitioner is deemed not to be qualified for a license 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.
Sufficient time has elapsed since Petitioner’s conviction in 1995 that it is unlikely that the issuance of a real estate sales associate license to Petitioner will endanger the public. A determination of the sufficiency of time is a finding of fact to be determined by the trier of fact. Smart v. Board of Real Estate, 421 So. 2d 22 (Fla. 1st DCA 1982).
Subsequent good conduct after the felony convictions in 1995 also make it unlikely that licensing Petitioner as a real estate sales associate would endanger the public. The DUI conviction does not present a likelihood of injury to the public.
The adequacy of Petitioner’s conduct after the crimes in 1993, including the omission of the DUI conviction in the initial application, is not infused with agency expertise. The evaluation of a licensee’s conduct is a question of fact to be
determined by the trier of fact. See Yeoman v. Construction Industry Licensing Board, 919 So. 2d 542 (Fla. 1st DCA 2005); Palamara v. State, Department of Professional Regulation, 855 So. 2d 706 (Fla. 4th DCA 2003); Bush v. Brogan, 725 So. 2d 1237, 1239-1240 (Fla. 2d DCA 1999); Dunham v. Highlands County School Board, 652 So. 2d 894, 896 (Fla. 2d DCA 1995); Albert v. Florida Department of Law Enforcement, Criminal Justice Standards and Training Commission, 573 So. 2d 187 (Fla. 3d DCA 1991).
In assessing Petitioner’s subsequent good conduct after 1993, the ALJ has been guided by analogous judicial precedent pertaining to other professional licenses because neither party cited any controlling judicial precedent involving applicants for licensure as a real estate sales associate when the application discloses felony convictions. In the absence of controlling precedent, the ALJ has relied on decisions of the Florida Supreme Court involving applicants for admission to the Florida Bar for guidance. As officers of the court, licensed attorneys are not held to a lesser standard of conduct than real estate sales associates.
The Florida Supreme Court approved a 1979 application for admission to the Florida Bar by an applicant who was convicted in 1972 of a felony involving the sale of cocaine. The criminal trial court sentenced the individual to prison for four years. The Florida Supreme Court found that during the
seven years between the applicant's conviction and application for admission to the Florida Bar, the applicant demonstrated that he had been rehabilitated. In re: Petition of
Jose Agustine Diez-Arguelles, 401 So. 2d 1347 (Fla. 1981). See
also Florida Board of Bar Examiners; RE: D.M.J., 586 So. 2d 1049 (Fla. 1991)(conviction of drug conspiracy charges does not preclude admission to the Bar by applicant who demonstrates rehabilitation).
In determining whether Petitioner has shown sufficient rehabilitation, the nature and seriousness of the offense are to be weighed against the evidence of rehabilitation. Florida Board of Bar Examiners RE: Mark Stephen Barnett, 959 So. 2d 234 (Fla. 2007). More serious misconduct requires a greater showing of rehabilitation. Id.
Petitioner did not personally commit an act of violence in 1993. The misconduct committed by Petitioner in 1993 was limited to a single night and did not involve an ongoing pattern of misconduct. Compare Barnett, 959 So. 2d at 235-236 (applicant rehabilitated in seven years after conviction for resisting arrest with violence and misappropriation of client funds), with Florida Board of Bar Examiners RE: M.B.S., 955 So. 2d 504, 510-511 (Fla. 2007)(misconduct from 1990 through 2002 is not overcome by evidence of rehabilitation between 2002 and application for admission in March of 2003), and Florida
Board of Bar Examiners RE: Fred C. McMahan, 944 So. 2d 335 (Fla. 2006)(applicant convicted in 1997 of felonies involving drug trafficking failed to show rehabilitation when he applied for
re-admission to the Florida Bar in 2002).
Neither party cited any legal authority that the DUI conviction in 2007 is a crime of moral turpitude. In Cambas v. Department of Business and Professional Regulation, 2009 Fla. App. LEXIS 2251 (Fla. 5th DCA 2009), a licensee appealed a final order suspending his real estate license. The licensee had pled guilty to a DUI misdemeanor charge and a felony charge of leaving the scene of an accident involving an injury. The licensee argued that neither conviction was a crime of moral turpitude. The appellate court concluded that leaving the scene of an accident involving an injury was a crime of moral turpitude but did not make a similar finding concerning the DUI conviction.
If Petitioner had disclosed the DUI conviction in the initial application, that conviction alone would not have been an impediment to licensure. Respondent did not cite any legal authority to support the conclusion that a DUI conviction is adequate grounds for denying a license application, and the independent research of the ALJ has not uncovered legal authority to support that conclusion.
Respondent has adopted guidelines for license discipline in Florida Administrative Code Rule 61J2-24.001(3). The rule does not prescribe disciplinary guidelines for a DUI conviction.
The Legislature intends for Respondent to distinguish between minor and major violations and to apply penalties consistently with the discipline guidelines adopted by Respondent in Florida Administrative Code Rule 61J-24.00(3). Bemenderfer v. Department of Business and Professional Regulation, Division of Real Estate, 955 So. 2d 659, 663 (Fla. 4th DCA 2007). The decision to grant or deny the license application should be made in a manner that is consistent with license discipline guidelines adopted by Respondent in Florida Administrative Code
Rule 61J2-24.001.
When an applicant obtains a license by failing to disclose a criminal conviction or misrepresenting a material fact, license revocation is the recommended penalty. Fla. Admin. Code
61J2-24.001(3)(n); Starr v. Department of Business and Professional Regulation, Division of Real Estate, 729 So. 2d 1006 (Fla. 4th DCA 1999); Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652 (Fla. 5th DCA 1998). However, Petitioner did not obtain a license by misrepresenting a material fact. Rather, Petitioner corrected the omission in the initial application by providing the documentation requested by Respondent in order to complete the application.
Neither party cited any judicial decisions involving an applicant for a real estate license who omits his or her criminal history from the application, but the agency discovers the omission before the application is complete. Analogous judicial precedent is provided by the Florida Supreme Court's admission of an attorney who omitted prior criminal history involving possession of marijuana from his application for admission to the Florida Bar. In Re: Application of VMF For Admission To The Florida Bar, 491 So. 2d 1104 (Fla. 1986).
In 1975, VMF was arrested in Michigan and charged with possession and delivery of marijuana. VMF entered into a plea agreement in which he pled guilty to the possession charge, adjudication of guilt was withheld, and VMF served one year of probation. VMF lived an exemplary life for 11 years until he applied for admission to the Florida Bar in February of 1984. VMF did not disclose the criminal conviction in his application for admission.
The Florida Supreme Court reasoned, in relevant part, that, if disclosed, the criminal convictions would not have precluded the applicant from admission to the Florida Bar. Petitioner’s DUI conviction, like the criminal convictions in VMF, would not prevent licensure if Petitioner had disclosed the DUI conviction in the initial application. Like the testimony of Petitioner in this proceeding, the testimony of the applicant in
VMF that he did not willfully mislead the agency when he omitted the criminal history from the application was persuasive. VMF, 491 So. 2d at 1106-1107.
Even if it were found that the omission of the DUI conviction from Petitioner's initial application evidenced a lack of candor, a lack of candor does not automatically prevent licensure. Florida Board of Bar Examiners RE: L.M.S., 647 So. 2d 838, 839 (Fla. 1994)(citing VMF, 491 So. 2d at 1107, as authority for granting admission to an applicant who was not completely candid in the application). Unlike the facts in L.M.S. and VMF, Petitioner's omission of the DUI conviction from the initial application was corrected before the application was completed. The omission by Petitioner evidences a lack of diligence rather than a lack of candor.
Petitioner's lack of diligence can be corrected through a probationary license. Florida Administrative Code Rule 61J2- 24.001(2) authorizes Respondent to place a licensee on probation. The terms of probation may include a requirement to attend and satisfactorily complete a "pre-licensure course" or a "post- licensure course" or other reasonable terms of probation including "periodic inspections and interviews."
Respondent can utilize a probationary license to require Petitioner to complete one or more post-licensure courses, within a reasonable period, that include instruction for disclosure
requirements in real estate transactions. A probationary license is a reasonable means of satisfying Respondent’s statutory obligation in Section 455.201 to protect the public.4
RECOMMENDED that Respondent enter a final order granting a probationary salesperson license to Petitioner consistent with the terms of this Recommended Order.
DONE AND ENTERED this 24th day of April, 2009, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2009.
1/ References to subsections, sections, and chapters are to Florida Statutes (2008), unless otherwise stated.
2/ Respondent’s Exhibit 1 contains written recommendations from two licensees who are unrelated to Petitioner.
3/ The issue of whether the omission of the DUI conviction evidences a lack of candor or a lack of diligence was a close question of fact for the fact-finder. If the evidence were limited to the documentary evidence available to the agency when it proposed agency action, the fact-finder would have agreed with the proposed denial of the application. However, the sworn testimony of Petitioner was available to the fact-finder in this de novo proceeding. The fact-finder listened to the testimony and observed the witness during direct and cross-examination and found the testimony of Petitioner on this issue to be credible and persuasive.
4/ If a post-licensure course were unavailable, the terms of probation may include reasonable requirements for inspection and interviews. Alternatively, the terms of probation may include both a post-licensure course and reasonable inspection and interview requirements.
Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01
Daniel Villazon, Esquire Daniel Villazon, P.A.
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.
