STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARLA B. ROSARIO, )

)

Petitioner, )

)

vs. ) CASE NO. 83-591

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, FLORIDA REAL ESTATE ) COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings by its duly designated Hearing Officer, DONALD R. ALEXANDER, on July 13, 1983, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Carla B. Rosario, pro se

8438 Linden Way

Lake Worth, Florida 33463

For Respondent: Ralph Armstead, Esquire

State Office Building, Suite 212

400 West Robinson Street Orlando, Florida 32801

BACKGROUND

Petitioner, Carla B. Rosario, filed an application for licensure as a real estate salesman on September 24, 1982, with respondent, Department of Professional Regulation, Florida Real Estate Commission. On January 27, 1983, respondent advised petitioner that her application was denied on the ground she had given an "incomplete answer to Question 6 of the application" and because she had been arrested on a number of charges in 1980.

Thereafter, petitioner requested a formal hearing pursuant to Subsection 120.57(1) , Florida Statutes, to contest the denial of her application. The matter was transmitted by respondent to the Division of Administrative Hearings on March 1, 1983, with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated April 21, 1983, the final hearing was scheduled on July 13, 1983, in West Palm Beach, Florida.

At the final hearing, petitioner testified on her own behalf. Respondent offered respondent's exhibits 1-3; all were received into evidence.

The transcript of hearing was filed on August 3, 1983. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, none were filed.

The issue herein is whether petitioner's application for licensure as a real estate salesman should be granted.

Based upon the entire record, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Carla B. Rosario, filed an application for licensure as a real estate salesman with respondent, Department of Professional Regulation, Florida Real Estate Commission, on September 24, 1982. Rosario had previously passed the examination with a score of 80.

   
   

2. Question 6 on the application asks if the applicant had ever "been arrested for, or charged with, the commission of an offense against the laws of any municipality, state or nation including traffic offenses. . .without regard to whether convicted, sentenced, pardoned or paroled." Petitioner responded with the following answer: "Yes, criminal fine of $150.00, a total of

   $165.00 including court costs. Cannot be exact about charge since I can't specifically (sic) remember it."

   
   

3. After receiving the application, respondent forwarded petitioner's fingerprint cards to the Federal Bureau of Investigation and requested a copy of petitioner's arrest record. That record reflected petitioner was arrested by the Wethersfield, Connecticut Police Department on October 18, 1980, for (a) second degree burglary, (b) conspiracy to commit second degree burglary, and (c) third degree larceny. The first two charges were ultimately dismissed and petitioner pled guilty to conspiracy to commit third degree larceny and paid a

   $150 fine plus $15 in court costs on November 5, 1981.

   
   

4. Prior to receiving the arrest report, respondent apparently requested petitioner to furnish additional information concerning her answer to question

1. In a letter dated November 2, 1982, petitioner responded that "(she) was arrested October of 1980, in Wethersfield, Connecticut", that "the matter was taken care of in New Britian Courts," and that the only documentation she had concerning the matter was enclosed. That was a one page receipt from the Superior Court, State of Connecticut, reflecting she had paid a $150 fine plus

   $15 court costs for a "criminal fine" on November 5, 1981.

   
   

   1. On January 27, 1983 respondent denied petitioner's application on the basis of her incomplete answer to question 6 and because her arrest record was an indication that she was not "honest, truthful, trustworthy, and of good character" and that she did not have a "good reputation for fair dealing." The letter of denial prompted the instant proceeding.

      
      

   2. Petitioner did not deny that her initial answer had been incomplete or that she had been arrested on various charges in 1980. She blamed the arrest incident on the fact that she happened to be in the same car with her husband when he was arrested for similar charges.

      
      

   3. Petitioner is unemployed at the present time. However, if she is successful in obtaining a real estate license, she intends to work for her mother who is active in the real estate business.

      CONCLUSIONS OF LAW

      
      

   4. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1) , Florida Statues.

      
      

   5. Although a part of the basis for denial of petitioner's application rests upon her incomplete response to question 6, respondent's primary reason for denial of the application is found in Subsection 475.17(1), Florida Statutes. That subsection provides in pertinent part as follows:

      
      

      1. An applicant for licensure who is a natural person shall be 15 years of age,

         a bona fide resident of the state, "honest, truthful, trustworthy, and of good character and shall have a good reputation for fair dealing....

         
         

   6. The arrest and subsequent plea of guilty by petitioner to a charge of conspiracy to commit third degree larceny in the State of Connecticut in 1980 is prima facie evidence that petitioner fails to meet the above statutory criteria, and was a sufficient basis for the Commission to initially deny the application. Petitioner carries the burden of proving that, notwithstanding her prior arrest, she is "honest, truthful, trustworthy, and of good character, and... (has) a good reputation for fair dealing." Here she failed to do so, and the application must be denied. Accordingly, it is concluded that petitioner's application for licensure as a real estate salesman should he denied without prejudice to petitioner submitting a new application at a later date to demonstrate her compliance with the statutory requirements. 1/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Carla B. Rosario for licensure as a

real estate salesman be DENIED without prejudice to her submitting a new application at a later time.

DONE and ENTERED this 15th day of August, 1983, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1983.

ENDNOTE

1/ At the final hearing, petitioner failed to present any evidence concerning compliance with the foregoing statute. This may have been the result of petitioner's unfamiliarity with the statute, what was expected of her at the final hearing, and because she appeared pro se. If she reapplies for licensure and is required to prove compliance at a formal hearing, she should be aware of the fact that without the consent of opposing counsels "letters of good character" may be inadmissible because of their hearsay nature, and such proof will have to come from third parties through live testimony.

COPIES FURNISHED:

Carla B. Rosario 8438 Linden Way

Lake Worth, Florida 33463

Ralph Armstead, Esquire State Office Building Suite 212

400 West Robinson Street Orlando, Florida 32801

Harold Huff, Executive Director Florida Real Estate Commission Post Office Box 1900

Orlando, Florida 32802

Frederick M. Roche, Secretary, Department of Professional

Regulation

Old Courthouse Square Building

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 83-000591

Orders for Case No: 83-000591