STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERESITA DE JESUS RANGEL, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3028

)

DEPARTMENT OF PROFESSIONAL )

REGULATIONS DIVISION OF )

REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to noticed the above matter was beard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on August 12, 1987 in Miami, Florida.

APPEARANCES

For Petitioner: Dennis N. Urbano, Esquire

1000 Ponce de Leon Boulevard, Suite 300 Coral Gables, Florida 33132

For Respondent: Lawrence S. Gendzier, Esquire

400 West Robinson Street, Suite 212 Orlando, Florida 32801

BACKGROUND

On an unknown date, respondent, Department of Professional Regulation, Division of Real Estate, informed petitioner, Teresita de Jesus Rangel, that her application for licensure as a real estate salesman by examination had been denied. Thereafter, petitioner requested a formal hearing on June 30, 1987 to contest the agency's decision. On July 14, 1987 respondent formalized its earlier decision and issued proposed agency action in the form of a letter advising petitioner that her application had been denied because of petitioner's criminal record. According to the letter, petitioner did not meet the requirements for licensure because of her response to a question in the application in which she acknowledged she had previously been arrested for and found guilty of three felonies. The matter was forwarded by respondent to the Division of Administrative Hearings on July 20, 1987, with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated July 24, 1987, a final hearing was scheduled for August 12, 1987 in Miami, Florida.

At final hearing, petitioner testified on her own behalf and presented the testimony of Nancy Penttila, Jose Morales and Howard Downes. Respondent offered respondent's exhibits 1-3. All were received into evidence.

The transcript of hearing was filed on September 9, 1987. Respondent filed proposed findings of fact and conclusions of law on September 17, 1987. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

The issue is whether petitioner meets the qualifications for licensure as a real estate salesman by examination.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. Petitioner, Teresita de Jesus Rangel, who is a thirty-four year old female, made application in early 1987 for licensure as a real estate salesman by examination with respondents Department of Professional Regulation, Division of Real Estate (Division).

   
   

2. Question six on the application requires the applicant to state whether he or she "has ever been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld." Petitioner answered in the affirmative and gave the following response:

   
   

   6. Conviction of crimes:

   
   

   January 28th, 1983 - Charged with possession with intent to distribute a controlled substance. Was found guilty and charged with

   3 years incarcerated and 3 years Special Parole. Conviction took place in Los Angeles, Ca.

   
   

   March 17th, 1983 - Charges: Conspiracy to import cocaine and marijuana. These were started as two different cases. Pleaded guilty to conspiracy and was sentenced five years on each case to run concurrent with the case in California. This conviction took place in Fort Lauderdale, Fl.

   
   

   I started my sentence on January 11th, 1984 at F.C.I., Lexington, Kentucky and was released to a Half-way House on October 2nd, 1986. These arrests stem from the same circumstances and were handled together and treated as one.

   
   

   The arrests occurred as a result of my involvement with my then boyfriend.

   Approximately a year and a half prior to my arrests I became romantically involved with this individual. This individual was Co- defendant in the case I was arrested. My involvement in the criminal case stands on my

   romantic involvement with him. Due to lack of judgement [sic] on my part, I became criminally involved with him eventually leading to our arrest.

   
   

   I have had no contact whatsoever with this individual since my incarceration. I further intend to avoid all contact with him in the future.

   
   

   At this time, I have an outstanding offer from Dominion Realty, Inc. In fact, the Broker at this firm is encouraging me to make this application to become a real estate salesperson. I realize this is a once-in-a- lifetime opportunity to begin a career. It will allow me to stand on my own and provide a respectable home and future for my children.

   
   

   Based upon the above response, the Division issued proposed agency action on July 14, 1987 denying the application. As grounds, the Division stated its action was "based upon (her) answer to Question #6 of the licensing application and/or (her) criminal record according to the appropriate law enforcement agency." The denial prompted this proceeding.

   
   

3. Petitioner is divorced and the sole support of three young children. She has been in the work force since 1972. According to all accounts, her work performance over the years has been exemplary, and Rangel was steadily promoted to positions of greater responsibility and duties in each of her jobs. Her work experience includes stints with a mortgage brokerage firm, an air freight carrier, an equipment distributor and a property management firm where she is now employed.

   
   

4. In 1983 Rangel was arrested on the previously cited charges, and pled guilty. She received three and five year prison terms in California and Florida, respectively, to run concurrently. Her involvement in the crimes was due to a romantic relationship with another man (the father of one of her children), who was also arrested and charged with the same offenses. Needless to say, their relationship went on the skids and they no longer have contact with one another. After her plea, Rangel began serving her sentence in January, 1984 at a federal institution in Lexington, Kentucky. In early October, 1986, or thirty-four months later, she was given an early release. Rangel then lived in a halfway house in Coral Gables until April- 1987. She now lives with her parents and three children in Miami. She will remain on probation until July, 1991. As such, she is subject to a number of special conditions, including random drug testing, a restriction on travel, and regular reporting to a parole officer. So far, she has had no problem in conforming with all restrictions imposed by the government, and anticipates none in the future.

   
   

5. Independent testimony established that petitioner is highly regarded by her employer. She is considered to be honest and of good character, and even though her employer is aware of her criminal record, Rangel has been entrusted with the responsibility of handling large amounts of cash (up to 10,000) each day without supervision. She is in charge of managing four executive office centers, and if licensed, will become a rental agent for Dominion Realty, Inc., a subsidiary company of the corporation for which she now works.

6. Rangel was candid and forthright in her testimony. She willingly accepted responsibility for her prior actions, and now wants the opportunity to use a real estate license as a means to provide support for her family. She appeared to the undersigned to be mature, and capable of handling the responsibilities of a real estate salesperson. Given her present job responsibilities, including the handling of large sums of money, and subsequent good conduct since release from prison, it is found Rangel is sufficiently rehabilitated to justify granting her application. Moreover, it is not likely that the public and investors will be endangered by licensure.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has juris- diction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).

   
   

8. Subsection 475.17(1)(a), Florida Statutes (1985), provides in relevant part as follows:

   
   

   (1)(a) An applicant for licensure who is a natural person shall be 18 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. An applicant for an active broker's license or a salesman's license shall be competent and qualified to make real estate transactions and conduct negotiations

   there for with safety to investors and to those with whom he may undertake a relationship of trust and confidence . . . if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending his license under this chapter had the applicant then been registered, 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 .

   
   

   Under the foregoing statute, an applicant for licensure must be "honest, truthful- trustworthy, and of good character and shall have a reputation for fair dealing." Further, if the applicant has committed an act which would be grounds for disciplining her license if she had been registered, there must be a "lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient" in order to be eligible for licensure. In other words, the applicant must affirmatively demonstrate that she has rehabilitated herself since the illicit conduct occurred, or that other good reasons exist for granting licensure. Aquino v. Department of Professional Regulation, Board of Real Estate, 430 So.2d 598 (Fla. 4th DCA 1983). Therefore, assuming this burden

   can be met, an applicant is not barred from obtaining a license even if he or she was previously convicted of a felony, as is the case here.

   
   

9. In the case at bar, through independent testimony, Rangel has demonstrated she has a good reputation, and is considered to be honest, truthful, trustworthy and of good character. Although her prior misdeeds cannot be condoned, she is now sufficiently rehabilitated to warrant the opportunity to take the real estate salesperson examination. Accordingly, it is concluded that Rangel meets the qualifications for licensure under Subsection 475.17(1), Florida Statutes (1985), and that her application be approved, subject to successfully passing the written examination.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Teresita de Jesus Rangel for licensure

as a real estate salesperson be GRANTED.

DONE AND ORDERED this 24th day of September, 1987, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of September, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3028

Respondent:

1. Covered in finding of fact 1.

2. Covered in finding of fact 2.

3. Covered in finding of fact 2.

4. Covered in finding of fact 2.

5. Covered in finding of fact 2.

6. Covered in findings of fact 2 and 4.

7. Covered in findings of fact 2 and 4.

8. Covered in finding of fact 4.

9. Covered in finding of fact 4.

10. Covered in finding of fact 4.

11. Covered in finding of fact 4.

12. Covered in finding of fact 5.

13. Covered in finding of fact 5.

COPIES FURNISHED:

Dennis N. Urbano, Esquire 1000 Ponce de Leon Boulevard Suite 300

Coral Gables, Florida 33132

Lawrence S. Gendzier, Esquire

400 West Robinson Street Suite 212

Orlando, Florida 32801

Mr. Harold Huff, Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32801

Honorable Tom Gallagher Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire

130 North Monroe Street Tallahassee, Florida 32399-0750

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION FLORIDA REAL ESTATE COMMISSION

TERESITA DE JESUS RANGEL

Petitioner,

vs.

DEPARTMENT OF PROFESSIONAL REGULATION, DIVISION OF REAL ESTATE,

Respondent.

/

DOAH NO. 87-3028

FINAL ORDER

The Florida Real Estate Commission heard this case on October 21, 1987 to issue a Final Order.

Hearing Officer Donald R. Alexander of the Division of Administrative Hearings presided over a formal hearing on August 12, 1987. On September 24, 1987, he issued a Recommended Order, which is adopted by the Florida Real Estate Commission as to all Findings of Fact. A copy of this Recommended Order is attached hereto as Exhibit A and made a part hereof. However, the Commission rejects the Conclusions of Law and Recommendation contained therein and adopts the Conclusions of Law and Recommendation contained in Respondent's Proposed Findings of Fact and Conclusions of Law, attached hereto as Exhibit B.

It is therefore ORDERED that the Petitioner be denied application for a real estate license.

This Order shall be effective on date of filing with the Clerk of the Department of Professional Regulation. This Order shall be appealable to the District Court of Appeal within 30 days from filing date.

DONE AND ORDERED this 21st day of October 1987 in Orlando, Florida.

Acting Director

Florida Real Estate Commission

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S. Mail to: Hearing Officer Donald Alexander, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Fl 32301; to Dennis Urbano, Esquire, 1000 Ponce de Leon Blvd., Suite 300, Coral Gables, Fl 33134; to Teresita de Jesus Rangel, 7500 514 Street, Miami, Fl 33144; and to Lawrence S Gendzier, Assistant Attorney General, Suite 212, 400 W. Robinson, Orlando, Fl 32801, this 26th day of October 1987.

Acting Director

Docket for Case No: 87-003028

Orders for Case No: 87-003028