STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EVELYN LOZADO,

vs.

Petitioner,

Case No. 14-0282

FLORIDA REAL ESTATE COMMISSION,

Respondent.

/

RECOMMENDED ORDER

On February 25, 2014, Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing in Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Evelyn Lozado, pro se

Apartment 305

3001 South Ocean Drive Hollywood, Florida 33019

For Respondent: Thomas Leslie Barnhart, Esquire

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

STATEMENT OF THE ISSUE

The issue in the case is whether, pursuant to sections 475.17(1)(a) and 475.181(2), Florida Statutes, Petitioner has the required honesty and good character to be entitled to take the examination for licensure as a licensed real estate sales associate.

PRELIMINARY STATEMENT

By Application dated January 7, 2013 (Application), Petitioner requested a license as a real estate sales associate. By Notice of Intent to Deny dated November 12, 2013, Respondent denied the Application due to the criminal record revealed in the Application, the failure of the Application to disclose the complete criminal record, the lack of persuasiveness of Petitioner's testimony or evidence in mitigation, and the lack of sufficient time free of government supervision for Petitioner to have established rehabilitation.

Petitioner timely requested a formal hearing.

At the hearing, Petitioner called one witness and offered into evidence no exhibits. Respondent called no witnesses and offered into evidence one exhibit, Respondent Composite Exhibit 1, which was admitted.

Neither party ordered a transcript. Respondent filed a Proposed Recommended Order on March 6, 2014.

FINDINGS OF FACT

1. On January 7, 2013, Petitioner filed the Application for licensure as a real estate sales associate. In response to a question asking if she had ever been convicted or found guilty of, or entered a plea of no contest or guilty to, a crime, Petitioner disclosed one crime: exploitation of an elderly person.

   
   

2. Although providing a detailed explanation of what she viewed as extenuating circumstances for the exploitation offense, Petitioner failed to disclose any other offenses. In addition to this offense, which is a 1999 conviction for the exploitation of an elderly person for more than $20,000, Petitioner was convicted at the same time of two other offenses that are undisclosed in the Application: organized fraud for $20,000 to $50,000 and grand theft.

3. These three offenses are second-degree felonies bearing the same disposition date of May 12, 1999, based on Petitioner's plea of no contest to the three charges. The court withheld adjudication and sentenced Petitioner to three years' probation,

   300 hours' community service, restitution of $1598, and court costs.

4. These offenses arose out of Petitioner's persuading an aged neighbor to cosign a note, so that Petitioner could purchase a car. The neighbor also lent Petitioner $1000, so that Petitioner could obtain insurance for the vehicle.

5. Fifteen years later, Petitioner continues to assert her innocence in this matter, although she does not deny the transactions described above in connection with these three convictions. Petitioner claims that she was poorly represented by a public defender and that the entire matter was the result of an overprotective out-of-state son who visited his aged mother

   
   

   and happened to notice a credit card charge for the insurance premium. At the very least, Petitioner lacks insight into the serious nature of her bad conduct in this matter.

6. In addition to failing to disclose two of three of the offenses described above, the Application also fails to disclose two earlier criminal matters. In 1989, Petitioner was charged with disorderly conduct and resisting arrest without violence, both misdemeanors. The record is undeveloped as to these charges, although it appears that Petitioner pled no contest to at least one of them, and the court withheld adjudication on both of them.

7. Also, in 1990, Petitioner pleaded no contest to a third- degree felony of grand theft, for which the court withheld adjudication and sentenced Petitioner to restitution of $450 and other special conditions.

8. Petitioner claims to have forgotten about these older criminal matters. Without regard to the legitimacy of this explanation as to the 1989 misdemeanor offense, it is unlikely that Petitioner had forgotten about the 1990 felony offense because, in this case, she had stolen a gold bracelet owned by a woman with whom her husband was romantically linked.

9. Under these circumstances, Petitioner has failed to prove, not only that she has the requisite honesty and good character for licensure, but also that sufficient time and

   
   

   subsequent good conduct provide the necessary assurance that her licensure would not present an undue risk to the public and investors.

   
   

   CONCLUSIONS OF LAW

   
   

10. DOAH has jurisdiction over the subject matter.

    
    

    §§ 120.569 and 120.57(1), Fla. Stat.

    
    

11. Section 475.181(2) provides that Respondent shall certify for licensure any applicant who satisfies the requirements of section 475.17, among other statutes.

12. Section 475.17(1)(a) provides that an applicant must be "honest, truthful, trustworthy, and of good character, and have a good reputation for fair dealing." Section 475.17(1)(a) adds that an applicant shall be deemed unqualified for licensure for conduct that would have been grounds for revoking or suspending her license, if she had been licensed, "unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears . . . that the interest of the public and investors will not likely be endangered by the granting of registration."

13. Section 475.25(1)(b) and (f) authorizes the denial of an application for licensure or the suspension or revocation of a license if the applicant or licensee has been guilty of fraud, misrepresentation, or breach of trust in any business transaction

    
    

    or has been convicted of or found guilty of, or entered a plea of no contest to, a crime involving "moral turpitude or fraudulent or dishonest dealing."

14. As an applicant, Petitioner bears the burden of proof.

    
    

    Dep't of Transp. v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA

    
    

    1981).

    
    

15. For the reasons set forth in the Findings of Fact, Petitioner has failed to prove that she meets the requirements

for licensure.

RECOMMENDATION

It is

RECOMMENDED that the Florida Real Estate Commission enter a final order denying the Application.

DONE AND ENTERED this 10th day of March, 2014, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 10th day of March, 2014.

COPIES FURNISHED:

Thomas Leslie Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level-01 Tallahassee, Florida 32399

Evelyn Lozado Apartment 305

3001 South Ocean Drive Hollywood, Florida 33019

Darla Furst, Chair Real Estate Commission

Department of Business and Professional Regulation

400 West Robinson Street, Suite N801 Orlando, Florida 32801

J. Layne Smith, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 14-000282

Orders for Case No: 14-000282