STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILBERT A. ACOSTA, )

)

Petitioner, )

)

vs. )

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 10-4224

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) on October 7, 2010, by telephone conference in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Wilbert A. Acosta, pro se

4528 Commander Drive, Apartment 2035

Orlando, Florida 32822

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 is whether Respondent should grant Petitioner’s application for a real estate sales associate license.

PRELIMINARY STATEMENT

On May 20, 2010, Respondent filed a Notice of Intent to Deny Petitioner’s application for a real estate license. On June 14, 2010, Petitioner requested a formal hearing to contest the denial. On June 29, 2010, Respondent referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified in his own behalf, presented no witnesses, and submitted no exhibits for admission into evidence. Respondent did not call any witnesses, but cross-examined Petitioner and submitted one composite exhibit for admission into evidence.

The rulings regarding questions to the witness and the admissibility of the exhibit are recorded in the official record of the hearing. Neither party requested a transcript of the hearing. Petitioner did not file a proposed recommended order (PRO). Respondent filed its PRO on October 14, 2010.

FINDINGS OF FACT

1. Respondent is the state agency responsible, in relevant part, for licensing real estate sales associates in Florida, pursuant to Chapter 475, Florida Statutes (2010).1 Petitioner applied for a real estate sales associate license on a date not established in the record.

2. The grounds stated in the Notice of Intent to Deny Petitioner’s application for license are based on the criminal

   
   

   convictions stated in the application, the recent nature of the crimes, the pattern of the crimes, and the unpersuasive testimony of the applicant pertaining to his rehabilitation.

   The Notice of Intent to Deny concluded, in relevant part, that the criminal history showed a course of conduct in which Petitioner was incompetent, negligent, or dishonest in dealing with money within the meaning of Subsections 475.25(1)(o)

   and 475.181. Respondent concluded it would be a breach of its duty to the public to grant the application as provided in Section 455.201. For the reasons stated hereinafter, the testimony of Petitioner at the hearing did not provide a preponderance of evidence to overcome the grounds for denial.

3. It is undisputed that Petitioner was convicted of two separate misdemeanors crimes for theft in Orange County, Florida, on April 21, 2004, and October 4, 2005. Petitioner served six months’ probation for the first offense and 30 days in jail for the second offense, as well as fines and community service related to both offenses.

4. Petitioner did not present any witness, or other evidence, to support his claim of his ability to deal favorably in business matters or transactions. Petitioner did not present any evidence as to whether he was honest, truthful, trustworthy, had good character, or had a good reputation for fair dealing.

   
   

5. Petitioner presented no evidence to show that he was competent. Petitioner presented no evidence to show he is qualified to make real estate transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence. Petitioner’s testimony can be fairly summarized as a plea for a second chance.

6. Petitioner presented no evidence of rehabilitation from his criminal past. His pleas of guilt to two different thefts are of paramount concern. These acts, coupled with a lack of any evidence of rehabilitation, fail to satisfy Petitioner’s burden of showing that he is qualified for licensure.

   CONCLUSIONS OF LAW

   
   

7. DOAH has jurisdiction over the parties and subject matter in this proceeding pursuant to Section 120.569 and Subsection 120.57(1). DOAH provided the parties with adequate notice of the final hearing.

8. Petitioner has the burden of proof in this proceeding.

   
   

   Petitioner must prove by a preponderance of the evidence that he satisfies the requirements for licensure as a real estate sales associate. See Dept. of Banking & Finance v. Osborne, Stern & Co., 670 So. 2d 932, 934 (Fla. 1996); Dept. of Transportation v.

   J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

   
   

9. Petitioner’s testimony is neither credible nor persuasive. His testimony, uncorroborated by a single disinterested witness, is legally insufficient to meet his burden of proof. See Taylor v. Dep’t of Business and Professional Regulation, Florida Real Estate Commission, Case No. 06-3036 (DOAH January 9, 2007, adopted by Final Order issued March 22, 2007, concluding that in order to satisfy the two- prong test of Subsection 475.17(1)(a), “Petitioner must offer more than the petitioner’s own statements and those of a personal friend attesting to her good moral conduct over the past nine years. Such statements are insufficient to meet the required burden of proof.”).

RECOMMENDATION

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

RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner’s application for licensure as a real estate sales associate.

DONE AND ENTERED this 21st day of October, 2010, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2010.

ENDNOTE

1/ References to subsections, sections, and chapters are to Florida Statutes (2010), unless otherwise stated.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-1050

Wilbert A. Acosta

4528 Commander Drive, Apartment 2035

Orlando, Florida 32822

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Roger P. Enzor, Chair Real Estate Commission Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801 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: 10-004224

Orders for Case No: 10-004224