A final hearing was conducted in this case on March 10, 2010, in Tallahassee, Florida, before James H. Peterson, III, Administrative Law Judge with the Division of Administrative
Hearings.
For Petitioner: Edward L. Parker, pro se
Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
The issue is whether the application of Petitioner for a Florida real estate broker’s license should be granted.
At the final hearing, Petitioner appeared by telephone, testified on his own behalf, and offered 12 exhibits which were received into evidence as Exhibits P1, A1, A2-1, A2-2, A3-1, A3- 2, A3-3, B1, B2, B3, C, and D, without objection. The Commission called Petitioner as a witness and offered one 42- page composite exhibit, Exhibit R1 (composite), consisting of the Commission’s Notice of Intent to Deny and a certified copy of Petitioner’s application, which was received into evidence without objection. After the hearing, Petitioner filed a written certification from the notary who administered the oath to Petitioner in Connecticut when Petitioner appeared by telephone in this case.
No transcript was ordered or filed. The parties were advised that proposed recommended orders were due within 10 days
from the final hearing. Both Petitioner and the Commission timely filed their respective Proposed Recommended Orders on March 22, 2010, and they were considered in the preparation of this recommended order.
Petitioner is an individual residing in the State of Connecticut.
Respondent is the state agency responsible for licensing real estate associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes.
In June 2007, Petitioner submitted to Respondent an application to be licensed as a real estate broker in Florida. In his application, Respondent requested mutual recognition of his broker’s license in Connecticut.
Petitioner held an active real estate broker’s license in Connecticut for at least 24 months during the preceding five years from the date of his application.
Petitioner was first licensed in the State of Connecticut as a real estate salesperson from May 13, 1987 through July 28, 1989. Thereafter, Petitioner held an individual license as a real estate broker in Connecticut from July 28, 1989 through April 30, 1993, and again from June 22, 1993, until his real estate broker’s license with the State of Connecticut expired on March 31, 2006.
In addition, Petitioner’s limited-liability company, America’s Home & Communities Real Estate, LLC, was licensed as a broker with the State of Connecticut, with Petitioner as the designated broker, on December 30, 2005. That license was active when Petitioner submitted his application with Respondent in June 2007, and expired, effective March 31, 2008.
In his application, Respondent answered “No” to the following question:
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 withholding of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer “NO” because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering “NO.” YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT.
After receiving Petitioner’s application, the Commission ordered a criminal record check from the Florida Department of Law Enforcement (FDLE). The results of that check showed that Petitioner had no Florida criminal record history,
but the National/FBI Criminal History Record Response (FBI Report) ordered by FDLE as part of that check under Petitioner’s name listed the following information in the following format:
ARRESTED OR RECEIVED 1968/08/05
AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94
CHARGE 1-B OF P CHARGE 2-DC
CHARGE 3-WIL DAM TO PRIV PROP
ARRESTED OR RECEIVED 1972/07/27
AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848-R94 NAME USED-PARKER,EDWARD
LEON
CHARGE 1-INCITING TO RIOT CHARGE 2-ESCAPE FROM CUSTODY
ARRESTED OR RECEIVED 1974/09/12
AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC #3
ARRESTED OR RECEIVED 1975/09/30 SID- CT00246406 AGENCY CASE-4684R94 NAME USED PARKER, EDWARD L CHARGE 1-DC
CHARGE 2-POSS NARC
CHARGE 3-CARRY GUN W/O PERMIT
ARRESTED OR RECEIVED 1975/10/23 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-L III BY POSS
ARRESTED OR RECEIVED 1975/12/18 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD L CHARGE 1-LARC IV
CHARGE 2-CARRY DANG WPN CHARGE 3-INTERFERING W/POLICE
ARRESTED OR RECEIVED 1976/01/27 SID- CT00246406 AGENCY-POLICE DEPARTMENT HARTFORD (CT0006400) AGENCY CASE-46848R94 NAME USED-PARKER, EDWARD CHARGE 1-INTERF W/PO
CHARGE 2-DC
* * *
ARRESTED OR RECEIVED 1977/07/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT WEST HARTFORD
(CT0015500)
AGENCY CASE-0786-77
CHARGE 1-ILL USE OF CREDIT CARD 31 CTS CHARGE 2-CRIM IMPERSONATION 31 CTS CHARGE 3-FORGERY 3RD DEG 31 CTS
CHARGE 4-LARC 4TH DEG 31 CTS COURT-
CHARGE-ILL USE OF CREDIT CARD 31 CTS SENTENCE-
09/01/77 PG 1YR 9/S ON EA CT 2YRS PROB CHARGE-CRIM IMPERSONATION 31 CTS SENTENCE-
NOLLED
CHARGE-FORGERY 3RD DEG 31 CTS SENTENCE-NOLLED
CHARGE-LARC 4TH DEG 31 CTS SENTENCE-NOLLED
ARRESTED OR RECEIVED 1985/11/14 SID- CT00246406 AGENCY-POLICE DEPARTMENT BLOOMFIELD (CT0001100) AGENCY CASE-7206 NAME USED-PARKER, EDWARD L CHARGE 1-ASLT 3RD
RECORD UPDATED 2007/12/07
ALL ARREST ENTRIES CONTAINED IN THIS FBI RECORD ARE BASED ON FINGERPRINT COMPARISONS AND PERTAIN TO THE SAME INDIVIDUAL.
THE USE OF THIS RECORD IS REGULATED BY LAY. IT IS PROVIDED FOR OFFICIAL USE ONLY AND MAY BE USED ONLY FOR THE PURPOSE REQUESTED.
The preamble to the above-recited FBI Report provides: THIS RECORD IS SUBJECT TO THE
FOLLOWING USE AND DISSEMINATION RESTRICTIONS
UNDER PROVISIONS SET FORTH IN TITLE 28, CODE OF FEDERAL REGULATIONS (CFR), SECTION 50.12, BOTH GOVERNMENTAL AND NONGOVERNMENTAL ENTITIES
AUTHORIZED TO SUBMIT FINGERPRINTS AND RECEIVE FBI IDENTIFICATION RECORDS MUST NOTIFY THE INDIVIDUALS FINGERPRINTED THAT THE FINGERPRINTS WILL BE USED TO CHECK THE CRIMINAL HISTORY RECORDS OF THE FBI. IDENTIFICATION RECORDS OBTAINED FROM THE FBI MAY BE USED SOLELY FOR THE PURPOSE REQUESTED AND MAY NOT BE DISSEMINATED OUTSIDE THE RECEIVING DEPARTMENT, RELATED AGENCY OR OTHER AUTHORIZED ENTITY. IF THE INFORMATION ON THE RECORD IS USED TO DISQUALIFY AN APPLICANT, THE OFFICIAL MAKING THE DETERMINATION OF SUITABILITY FOR LICENSING OR EMPLOYMENT SHALL PROVIDE THE APPLICANT THE OPPORTUNITY TO COMPLETE, OR CHALLENGE THE ACCURACY OF, THE INFORMATION CONTAINED IN THE FBI IDENTIFICATION RECORD. THE DECIDING OFFICIAL SHOULD NOT DENY THE LICENSE OR EMPLOYMENT BASED ON THE INFORMATION IN THE RECORD UNTIL THE APPLICANT HAS BEEN AFFORDED A REASONABLE TIME TO CORRECT OR COMPLETE THE INFORMATION, OR HAS DECLINED TO DO SO. AN INDIVIDUAL SHOULD BE PRESUMED NOT GUILTY ON ANY CHARGE/ARREST FOR WHICH THERE IS NO FINAL DISPOSITION STATED ON THE RECORD OR OTHERWISE DETERMINED. IF THE APPLICANT WISHES TO CORRECT THE RECORD AS IT APPEARS IN THE FBI’S CJIS DIVISION RECORDS SYSTEM, THE APPLICANT SHOULD BE ADVISED THAT THE PROCEDURES TO CHANGE, CORRECT OR UPDATE THE RECORD ARE SET FORTH IN TITLE 28, CFR, SECTION 16.34.
- FBI IDENTIFICATION RECORD –
WHEN EXPLANATION OF A CHARGE OR DISPOSITION IS NEEDED, COMMUNICATE DIRECTLY WITH THE AGENCY THAT FURNISHED THE DATA TO THE FBI.
On March 5, 2008, Respondent wrote to Petitioner and asked Petitioner to provide a copy of the arrest reports and the final outcome for each of the arrests detailed in the FBI Report.
Of the 9 reported arrests listed under Petitioner’s name on the FBI Report, only one, number 8 from July 14, 1977,
indicates that Petitioner was convicted of a crime. According to that report, Petitioner was sentenced on September 1, 1977, for 31 counts of illegal use of a credit card. According to the report, the other charges listed under arrest number 8 (multiple counts for criminal impersonation, forgery, and larceny) were not prosecuted.
Petitioner disputes that he was ever arrested on
July 14, 1977, or convicted of any of the charges listed in item number 8. In correspondence and in his testimony at the final hearing, Petitioner pointed out that the record for July 14, 1977, is not supported by fingerprints, and further, that he is not white, as indicated in the police records for that arrest.
Petitioner also disputes that he was ever incarcerated.
Upon his request to obtain court records related to the disputed conviction, Petitioner was advised by the Records Center for the Superior Court of the State of Connecticut that the court records had been destroyed. At the final hearing, Petitioner submitted certified copies of correspondence from Connecticut’s Superior Court’s Record Center as evidence that the records had been destroyed.
Nevertheless, in order to clear his name, Petitioner sought a pardon from the State of Connecticut for the listed conviction for illegal use of a credit card, as well as two other matters listed as arrests (apparently, the “interfering
with police” charge listed in item number 6 and the “larceny” charge under item number 8) that Petitioner disputed.
On June 8, 2009, Petitioner faxed to Respondent correspondence indicating Petitioner’s efforts to obtain records and clear his name. Included in the correspondence were three letters dated February 17, 2009, from Connecticut’s Superior Court Record Center indicating that records from the disputed charges had been destroyed; Petitioner’s letter dated
February 18, 2009, to Connecticut’s Board of Pardons & Paroles requesting assistance in getting a pardon for the alleged crimes; and a letter dated June 3, 2009, to Petitioner from Connecticut’s Board of Pardons & Paroles conditionally granting Petitioner a pardon, pending confirmation from several criminal justice agencies that “the records of your conviction(s) have been erased, which takes at least 8 months.”
On June 11, 2009, Petitioner sent to Respondent by facsimile three letters of reference which reflect positively upon Petitioner’s character.
By letter dated July 17, 2009, Respondent advised Petitioner that his application would be considered at Respondent’s meeting scheduled for August 12, 2009, in Orlando, Florida, and that Petitioner should forward any additional letters of recommendation or other supporting documentation no later than July 20, 2009.
Petitioner’s application file indicates that Respondent received a positive recommendation for Petitioner on July 23, 2009, from a real estate broker in Connecticut, and that, on July 24, 2009, Petitioner forwarded a letter to Respondent from the Greater Hartford Association of Realtors, Inc., stating that Petitioner “is a member in good standing with the Greater Hartford Association of Realtors® since December 11, 1998,” indicating that Petitioner’s local, state and national dues have been paid, and advising that Petitioner completed a code of ethics course on December 12, 2008.
Petitioner appeared, pro se, and gave testimony at the August 12, 2009, meeting where his application was considered. Following that meeting, Respondent entered a Notice of Intent to Deny, which stated a number of grounds for the intent to deny Petitioner’s application.
Respondent’s Notice of Intent to Deny recited Key findings of fact 1, 2, 4, and 7, and Key conclusions of law B, C, E and M, as grounds for its proposed denial of Petitioner’s application. Those Key findings and conclusions, as set forth on the Key for License Denials, attached to Respondent’s Notice of Intent to Deny, are as follows:
Crimes in Application. Applicant’s criminal record is as revealed in application.
Failure to disclose. Applicant’s complete criminal record was not revealed in application.
4. Unpersuasive Testimony. Applicant’s testimony or evidence in explanation/mitigation was unpersuasive.
7. No Showing Rehabilitation. Applicant has not had sufficient time free of government supervision to establish rehabilitation.
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.
Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S.
E. Guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in any business transaction; 475.25(1)(b), 475.181 F.S.
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 easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S.
In sum, all of Respondent’s reasons to deny Petitioner’s application for a broker’s license are related to a finding that Petitioner was convicted of crimes and failed to disclose them on his application.
The evidence, however, does not support the grounds recited in Respondent’s Notice of Intent to Deny. Other than Petitioner’s disputes of, and eventual pardon from, three crimes listed on the pardon obtained on May 27, 2009, there is no evidence that Petitioner was ever convicted of a crime.
At the final hearing, Petitioner admitted that he grew up in a rough neighborhood and had negative contacts with law enforcement for a number of years. He apologized for any appearance that he tried to deceive Respondent, but explained that although he had been arrested in the past, he has never been incarcerated. Petitioner further explained that he did not believe that he had a record because of the passage of time.
In addition, at the final hearing, Petitioner submitted evidence that he has received a full pardon for the listed (and disputed) conviction for illegal use of a credit card.3/
It has been over 20 years since Petitioner has had any negative contact with law enforcement.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. See §§ 120.569, 120.57(1), Fla. Stat. (2009).
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 prove by a preponderance of the evidence that he satisfied relevant statutory criteria to be licensed as a real estate broker in Florida.
Section 475.181, Florida Statutes, provides in pertinent part:
The department shall license any applicant whom the commission certifies, pursuant to subsection (2), to be qualified to practice as a broker or sales associate.
The commission shall certify for licensure any applicant who satisfies the requirements of ss. 475.17, 475.175, and 475.180.
* * *
Section 475.17(1)(a), Florida Statutes, requires an applicant for licensure as a real estate broker 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” 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 been registered, [in which case] 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. Id.
Section 475.25(1)(f), Florida Statutes, authorizes Respondent to deny an application for licensure if it finds that 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. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.
As noted in the Findings of Fact, above, at the administrative hearing, Petitioner submitted evidence showing that the only records of the alleged conviction have been destroyed.
On the other hand, rather than reliance on a certified or authenticated record of conviction, Respondent’s denial of Petitioner’s application for license was based upon the printout on the FBI Report.
The FBI Report is hearsay. See §90.801(1)(c), Fla.
Stat. (hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth to the matter asserted”); cf., Burgess v. State, 831 So. 2d 137, 140 (Fla. 2002)(police reports
not admissible as public records exception to hearsay); see also express caveats in the FBI Report preamble quoted in Finding of Fact 9, supra.
While hearsay may be used in an administrative setting for the purpose of supplementing or explaining other evidence, it is insufficient in itself to support a finding unless it would be admissible over objection in civil actions.
§ 120.57(1)(c), Fla. Stat.
The only corroborative evidence that Petitioner was ever convicted of a crime was provided by the pardon obtained by Petitioner in order to clear his name. Petitioner, however, never admitted that conviction, and it is found, based upon the hearsay nature of the FBI Report, that evidence that any court records for the alleged conviction have been destroyed, and Petitioner’s testimonial and documentary denials that he never committed the alleged crime, which Petitioner proved, by a preponderance of the evidence, that he was never convicted of misuse of a credit card as set forth in the FBI Report.
While Petitioner admitted that he may have committed some of the acts appearing on the FBI Report, that admission does not provide evidence of a conviction or evidence that Petitioner was untruthful on his application. It is also found, that the grounds set forth in Respondent’s Notice of Intent to Deny are not supported by the evidence.
In sum, Petitioner demonstrated by a preponderance of the evidence that he was not dishonest in his application and that the reasons given in Respondent’s Notice of Intent to Deny cannot form the basis for denying Petitioner’s application for a license.
The Petitioner, however, did not meet his burden of showing his entitlement to a reciprocal license at this time. That is because, in addition to the requirements quoted in Conclusion of Law 29, supra, Section 475.17(b)3., Florida Statutes, provides:
A person may not be licensed as a real estate broker unless, in addition to the other requirements of law, the person has held:
A current and valid real estate broker’s license for at least 24 months during the preceding 5 years in any other state, territory, or jurisdiction of the United States or in any foreign national jurisdiction.
Although not given as a reason in Respondent’s Notice of Intent to Deny, Respondent submitted evidence at the final hearing, and mentioned in its proposed recommended order, that Petitioner’s broker’s license in Connecticut expired on
March 31, 2006.
At the time Petitioner submitted his application, Section 475.17(b)3. required a showing of licensure in another state for only 12 months in the preceding five years. The
statute was amended in 2008 to require 24 months of out-of-state licensure. The current version of the statute, requiring a current and valid out-of-state license for at least 24 months in the past 5 years is the law that applies in this case. See
Lavernia v. Dept. of Professional Regulation, Board of Medicine, 616 So. 2d 53 (Fla. 1st DCA 1993)(law for determining applications is the statute in effect at the time of final determination, as opposed to the time of application).
While Petitioner met the out-of-state licensure requirement at the time of his application, at the final hearing, Petitioner failed to show that he has held an individual Connecticut broker’s license for at least 24 months during the preceding five years. Although Respondent did not advise Petitioner prior to the hearing that the expiration of Petitioner’s individual Connecticut broker’s license was an issue, there is no evidence that Respondent unreasonably delayed processing the application which would support an argument that Respondent should be estopped from requiring Petitioner to meet the applicable standards for licensure as a broker through the time of Respondent’s final determination of Petitioner’s application. Cf., Lavernia, supra at 55, distinguishing Goldstein v. Sweeny, 42 So. 2d 367 (Fla. 1949).
Although Petitioner’s LLC was licensed as a broker in Connecticut, with Petitioner as the designated broker, for at
least 24 months in the past five years preceding the date of the final hearing, see Finding of Fact 6, supra, Petitioner offered no evidence or law that such designation would satisfy the requirements of Section 475.17(1)(b)3., Florida Statutes.
Therefore, although Petitioner successfully demonstrated that the reasons given in Respondent’s Notice of Intent to Deny should not be used as a basis to deny Petitioner’s application, Petitioner failed in his ultimate burden of showing his entitlement to a Florida real estate broker’s license at this time.
RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding that Petitioner was not dishonest in his application to be licensed as a real estate broker in Florida submitted in June 2007, but denying that application, without prejudice, consistent with the terms of this Recommended Order.
DONE AND ENTERED this 13th day of April, 2010, in Tallahassee, Leon County, Florida.
JAMES H. PETERSON, III
Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2010.
1/ The Florida Real Estate Commission is established within the Florida Department of Business and Professional Regulation’s Division of Real Estate (DBPR). § 20.165(4)(b)2., Fla. Stat.
DBPR provides certain staff and administrative services for the Florida Real Estate Commission. Therefore, in this Recommended Order, in addition to the Real Estate Commission, the term “Respondent” shall also refer to DBPR in all instances where DBPR was acting on behalf of the Florida Real Estate Commission.
2/ Unless otherwise indicated, all references to the Florida Statutes are to the 2009 version.
3/ The Certificate of Pardon gives Petitioner “a full, complete, absolute and unconditional pardon for the crime(s) Illegal use CC Dkt.# 16-CR-0123189. . . .” While the pardon uses an obvious erroneous date for the conviction (3/8/1994 as opposed to 9/1/77), the docket number corresponds to that in correspondence from Superior Court’s Records Center regarding the alleged conviction. (Petitioner’s Exhibit B-2)
Edward L. Parker
Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01
Roger P. Enzor, Chair Real Estate Commission Department of Business
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.
