STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION,

Petitioner,

vs.

CARL ALLEN QUESINBERRY,

Respondent.

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) Case No. 11-4404

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RECOMMENDED ORDER

A final hearing was held in this matter before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on January 10, 2012, by video teleconferencing at sites located in Tallahassee and Pensacola, Florida.

APPEARANCES

For Petitioner: C. Erica White, Esquire

Department of Business

and Professional Regulation 1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

For Respondent: Carl Allen Quesinberry, pro se

329 South Garcon Point Road Milton, Florida 32583

STATEMENT OF THE ISSUE

The issue is whether Petitioner properly denied Respondent's application for licensure as a community association manager for

failure to establish good moral character as required by section 468.433(2)(b)2., Florida Statutes, and Florida Administrative Code Rule 61-20.001(5)(b)3.

PRELIMINARY STATEMENT

By a written notice dated May 5, 2011, Petitioner, the Department of Business and Professional Regulation, informed Respondent, Carl Allen Quesinberry, it would not certify that he was of good moral character and, therefore, intended to deny his application for licensure as a community association manager.

Respondent timely requested a formal hearing to contest the allegation that he lacks good moral character.

However, Petitioner scheduled an informal hearing on August 25, 2011, after determining Respondent had not disputed

any material facts in this cause. During the hearing, the agency hearing officer determined there were disputed issues of material fact. Petitioner subsequently referred the matter to the Division of Administrative Hearings on August 29, 2011.

The final hearing in this matter was held on January 10, 2012, with both parties present. Petitioner was represented by counsel while Respondent represented himself.

At hearing, Petitioner presented one witness, Anthony Spivey, the executive director of the Regulatory Council of Community Association of Managers within the Department of Business and Professional Regulation. Petitioner offered

15 exhibits, which were admitted into evidence. Respondent testified on his own behalf and presented the testimony of Michael Gerrity, Anthony VanDerworp, and Michael LaFay as character witnesses. Respondent also presented the testimony of Anthony Spivey. Respondent offered 22 exhibits with Exhibits 1 through 11, 13 through 18, and 22 being admitted into evidence.

The Transcript was filed with the Division on January 27, 2012, with the parties' proposed recommended orders therefore due on February 6, 2012. Petitioner and Respondent timely filed their proposed recommended orders. Respondent thereafter filed an objection to Petitioner's proposed recommended order on February 9, 2012. Since such objection is not permitted by the Model Rules of Procedure, it will not be considered for purposes of this Recommended Order. References to statutes are to Florida Statutes (2011) unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, Department of Business and Professional Regulation (Department), is the state agency responsible for regulating the practice of community association management pursuant to section 20.165, and chapters 455 and 468, Part VIII, Florida Statutes.

2. In February of 2011, Respondent, Carl Allen Quesinberry, submitted an application for licensure as a community association manager to the Department.

   
   

3. In May of 2011, the Department notified Respondent that it intended to deny his application on the ground that he had failed to demonstrate good moral character. Specifically, the Department indicated Respondent has exhibited a pattern of unlawful behavior which would indicate Respondent has little regard for the law, the rules of society, or the rights of others, and used the term "habitual offender" to describe him.

4. A review of Respondent's criminal history discloses a series of 12 criminal convictions during the time period beginning May 5, 1985, through November 14, 2007. Specifically, Respondent was found guilty of the following criminal law violations on the following dates:

   1. Reckless Driving, May 3, 1985;

      
      

   2. Driving Under the Influence, April 4, 1996;

      
      

   3. Battery, September 27, 1996;

      
      

   4. Battery, August 15, 2001;

      
      

   5. Misdemeanor conviction, December 8, 2003;

      
      

   6. Two convictions for Battery, March 31, 2006;

      
      

   7. Revocation of Probation, March 29, 2007;

      
      

   8. Two convictions for Trespass of an Occupied Dwelling, June 29, 2007;

      
      

   9. Revocation of Probation, November 14, 2007; and

      
      

   10. Violation of Domestic Violence Injunction, November 14, 2007.

       
       

5. A review of the criminal history for Respondent shows that he has not had any arrests, pleas, or convictions since November of 2007. At the time of Respondent's application for licensure as a community association manager in February of 2011, it would have been over three years since Respondent had encountered any legal difficulties.

6. Respondent presented the testimony of Michael Gerrity, the CEO of the World Property Channel in Miami, Florida, as a factual witness in this matter. Mr. Gerrity runs one of the largest real estate global news networks in the country. His company covers residential and commercial real estate news and trends.

7. Mr. Gerrity testified he has known Respondent since ninth or tenth grade from attending the same high school, Lyman High School, in Longwood, Florida. He testified that he has known Respondent to be an honest and trustworthy individual in his real estate dealings and transactions. He believes Respondent has respect for others and the law, and that Respondent's criminal troubles have never affected his business dealings or those of his clients.

8. Respondent has represented a wide variety of real estate clients, from those investing in property to those leasing space

   
   

   for their businesses. Respondent has represented Fortune 500 Companies as well as smaller local companies in his real estate dealings.

9. Mr. Gerrity, Anthony VanDerworp, and Michael LaFay (Respondent's criminal defense attorney) testified that the bulk of Respondent's criminal matters stemmed from Respondent's dysfunctional relationship, which involved both individuals drinking.

10. Messrs Gerrity, VanDerworp, and LaFay all believe Respondent has changed his life and his focus in the last three or four years. Respondent has undergone substance abuse counseling and his testifying witnesses all believe he has overcome his addiction and will continue to serve his real estate clients well in the future.

11. Respondent did not offer any testimony or evidence from his counselors or physicians that he has overcome or controlled his prior substance abuse addition, so the evidence supporting his changed life is based upon his testimony and the anecdotal testimony of his friends, Messrs Gerrity, VanDerworp, and LaFay.

12. Respondent testified that he has received counseling, moved to Kentucky, gotten married, had a child, received real estate licenses in both Kentucky and Alabama, and turned his life around.

    
    

13. Respondent has been licensed in Florida for more than

    
    

    25 years as a real estate broker. During that time, he has not been disciplined by the Florida Real Estate Commission.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

15. Before the Department can issue a community association manager license to any person, it must determine that the person is of good moral character. Section 468.433(2) provides in relevant part:

    1. The department shall examine each applicant who is at least 18 years of age, who has successfully completed all prelicensure education requirements, and who the department certifies is of good moral character.

       
       

       1. Good moral character means a personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation.

          
          

       2. The department may refuse to certify an applicant only if:

          
          

          1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a community association manager;

             
             

          2. The finding by the department of lack of good moral character is supported by clear and convincing evidence; or

             
             

          3. The applicant is found to have provided management services requiring licensure without the requisite license.

          
          

16. The Department has prescribed by rule a detailed framework of objective criteria for determining whether an applicant possesses good moral character. Rule 61-20.001(5)(a) provides:

    1. Unless the division denies the application for incompleteness under paragraph (4)(a) of this rule, the division shall evaluate the application and make appropriate inquiry to determine the applicant's moral character. Demonstration of all of the following will establish the applicant's good moral character:

       
       

       1. The completion of a criminal history records check by the Florida Department of Law Enforcement and self-disclosure by the applicant that establishes that the applicant has no criminal record; and

          
          

       2. The absence of civil lawsuits or administrative actions decided adversely to the applicant which involved matters bearing upon moral character including, for example: fraud, dishonesty, misrepresentation, concealment of material facts, or practicing a regulated profession without a license or certificate as required by law or rule; and

          
          

       3. No prior history of violations by the applicant of Chapter 468, Part VIII, F.S., any rule of the division relating to community association management, or any lawful order of the division previously entered in a disciplinary proceeding, or of failing to comply with a lawfully issued subpoena of the division; and

          
          

       4. The absence of other information generated in the course of the application

          
          

          process which negatively reflects on the applicant's moral character including, for example: gross misconduct or gross negligence in the applicant's prior work experience whether or not the prior work was related to the professional responsibilities of a community association manager; and

          
          

       5. That the applicant has not committed the following in connection with an application:

          
          

          1. Given to the division a check for payment of any fee when there are insufficient funds with which to pay the same, if the applicant, upon notification by the division, fails to redeem the check or otherwise pay the fee within 30 days of the date of written notification by the division; or

             
             

          2. Failed to provide full and complete disclosure, or failed to provide accurate information.

       
       

17. The definition of "criminal record" pursuant to rule 61-20.001(1)(c) includes:

    . . . any misdemeanor or felony charge filed against the applicant in the courts of any state or federal district or territory, or other country, on any subject matter whether related to community association management or not, concerning which charge the applicant was found guilty, or pled guilty, or pled no contest, regardless of whether or not there was an adjudication by the court, and regardless of whether the matter is under appeal by the applicant.

    
    

18. When an applicant is unable, as in the instant case, to establish good moral character under rule 61-20.001(5)(a), the following additional factors must be considered:

    1. If commission of a second degree misdemeanor is the only reason the applicant

       
       

       did not meet the requirements of paragraph (5)(a) of this rule, the applicant will be considered to have good moral character.

       However, if there are also other reasons why the applicant did not meet the requirements of paragraph (5)(a) of this rule, the second degree misdemeanor will be considered along with the other factors in determining the applicant's good moral character;

       
       

    2. If the applicant has committed a first degree misdemeanor or a felony, and the applicant's civil rights have been restored, this alone shall not preclude a finding of good moral character unless the crime is directly related to the professional responsibilities of a community association manager. Crimes that are deemed to be directly related to the professional responsibilities of a community association manager include, for example, fraud, theft, burglary, bribery, arson, dealing in stolen property, forgery, uttering a forged instrument, sexual battery, lewd conduct, child or adult abuse, murder, manslaughter, assault, battery, and perjury. The applicant has the burden of proving restoration of civil rights by certified true copy of government or court records reflecting such action.

       
       

    3. Whether the applicant has exhibited a pattern of unlawful behavior which would indicate that the applicant has little regard for the law, the rules of society, or the rights of others. All unlawful acts will be considered in determining whether the applicant has exhibited a pattern of unlawful behavior, even though any one of the unlawful acts by itself might not be directly related to the professional responsibilities of a community association manager. It is the applicant's repeated flaunting of or ignoring the law that evinces a lack of the moral character needed to perform the duties and assume the responsibilities of a community association manager, not the particular

       
       

       relationship of any one of the violations to the professional responsibilities of a community association manager.

       
       

    4. Whether the applicant is disqualified from applying for a license by reason of Section 775.16, F.S., pertaining to conviction of certain offenses involving controlled substances.

       
       

    5. Conduct of the applicant relied upon by the division to determine that the applicant lacks good moral character shall be directly related to the professional responsibilities of a community association manager.

       
       

    6. Written evidence the division will consider in determining the applicant's good moral character shall include:

       
       

       1. A statement from the applicant explaining the applicant's criminal/unlawful conduct and the reason the applicant believes the division should issue the license;

          
          

       2. Evidence as to the length of time since the conduct occurred or the age of the applicant at the time the conduct occurred;

          
          

       3. Evidence of successful rehabilitation;

          
          

       4. Recommendations from parole or probation employees who have supervised the applicant;

          
          

       5. Recommendations from the prosecuting attorney or sentencing judge;

          
          

       6. Character references from individuals other than immediate family members, who have known the applicant for 3 years or longer;

          
          

       7. Police reports or transcripts which reveal the underlying facts of the crime;

          
          

       8. Evidence that the conduct was an isolated occurrence contrary to the applicant's normal pattern of behavior; and

          
          

       9. Evidence of community or civil activities with which the applicant has been associated. It is the applicant's responsibility to provide such mitigating evidence to the division.

          
          

    7. If the applicant makes incomplete, misleading or false statements regarding material facts in making an application, such action will establish the applicant's lack of good moral character, and the application will be denied.

    
    

    Fla. Admin. Code R. 61-20.001(5)(b).

    
    

19. Rule 61-20.001(6) provides an "unsuccessful applicant who requests a hearing for issuance of a license under this rule shall have the burden of proof to establish, by a preponderance of the evidence, entitlement to the requested license." See also

    Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). However, as noted above in paragraph 15, section 468.433(2)(b)2., requires the Department to prove that the lack of "good moral character" can be supported by clear and convincing evidence.

20. The Department has the burden of proving the specific allegations of fact that support its charge that Respondent is not of good moral character by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). See also § 120.57(1)(j), Fla. Stat. ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or

    
    

    licensure disciplinary proceedings or except as otherwise provided by statute ").

21. What constitutes "clear and convincing" evidence was described by the court in Evans Packing Co. v. Dep't of Agriculture & Consumer Services, 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA 1989), as follows:

    1. [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must of such weight that it produces in the mind of the trier of fact the firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

       
       

22. Section 90.401, Florida Statutes, provides that "relevant evidence is evidence tending to prove or disprove a material fact." City of Winter Haven v. Tuttle/White

    Constructors, Inc., 370 So. 2d 829, 831-32 (Fla. 2d DCA 1979) ("Material evidence is evidence which is relevant and goes to the substantial matters in dispute, or has a legitimate and effective influence or bearing on the decision of the case.").

23. Petitioner proved by clear and convincing evidence that Respondent failed to establish good moral character pursuant to rule 61-20.001(5)(b), by introducing certified copies of the aforementioned criminal convictions. Respondent's criminal

    
    

    history, which discloses 12 criminal convictions, demonstrates "a pattern of unlawful behavior" which "evinces a lack of moral character needed to perform the duties and assume the responsibilities of a community association manager," as specified in rule 61-20.001(5)(b)3. Further, Respondent's criminal history indicates that he has little regard for the law, the rules of society, or the rights of others.

24. Respondent's criminal behavior extended over more than

    
    

    20 years and cannot be explained away as related to one or even a series of acts arising from one personal relationship. Since 1984, Respondent has demonstrated a disregard for the safety of others by doing the following: (a) Driving in a reckless fashion on multiple occasions; (b) Demonstrating a disregard for the property rights of others by trespassing an occupied dwelling;

    1. Demonstrating a disregard for the law by violating a domestic violence injunction and knowingly violating probation; and (d) Demonstrating a disregard for the bodily integrity of others through an extensive history of violent acts.

25. The undersigned finds the evidence offered by Respondent in support of his application for licensure to be unconvincing. The three witnesses offered by Respondent were biased in Respondent's favor and did not possess the requisite knowledge to attest to Respondent's good moral character. While each of the witnesses were impressive individuals based upon

    
    

    their professional histories and standing in the community, they had little or no direct knowledge of Respondent's reputation for truthfulness in the State of Florida. Documentary evidence supplied by Respondent merely suggests that Respondent entered treatment, but does not suggest that Respondent has been rehabilitated to any extent. Testimony from a counselor, therapist, or other health care professional that Respondent had overcome or at least controlled his addiction would have served as direct evidence of rehabilitation and supported Respondent's claim that he possesses good moral character.

26. The undersigned concludes that Respondent has not met his burden of proving that he is entitled to licensure by a preponderance of the evidence. The evidence of good moral character offered by Respondent is outweighed by the clear and convincing evidence of Respondent's lack of good moral character offered by Petitioner.

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional Regulation enter a final order denying Respondent's application for licensure as a community association manager.

DONE AND ENTERED this 16th day of May, 2012, in Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

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 16th day of May, 2012.

COPIES FURNISHED:

C. Erica White, Esquire Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Carl Allen Quesinberry

329 South Garcon Point Road Milton, Florida 32583

J. Layne Smith, General Counsel Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Anthony B. Spivey, Executive Director Regulatory Council of Community

Association of Managers Division of Professions Department of Business

and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

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: 11-004404

Orders for Case No: 11-004404