STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONIA L. CEPADA, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5982

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on Nay 3, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Marilyn Capo, Esquire

780 North West Le Jeune Road, Suite 504 Miami, Florida 33433

For Respondent: Manuel E. Oliver, Esquire

Assistant Attorney General

400 West Robinson Street, Suite 212 Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Petitioner's application for licensure should be approved, pursuant to Chapter 475, Florida Statutes.

PRELIMINARY STATEMENT

By application filed on July 26, 1988, Petitioner sought licensure as a real estate salesman. On November 29, 1988, Respondent advised Petitioner that her application had been denied based upon her arrest and conviction for conspiracy to import marijuana in 1985. Thereafter, Petitioner requested a formal hearing and the matter was referred to the Division of Administrative Hearings.

At the formal hearing, Petitioner testified on her own behalf and called two character witnesses; Alberto Delgado, a pastor and Rafael Santana, a real estate salesman. Petitioner had marked for identification one exhibit, P-1, which was not offered into evidence. Respondent called no witnesses, but offered three exhibits, R-1 through R-3, which were received into evidence.

The transcript of the hearing was filed on May 22, 1989, and the parties were granted leave until June 1, 1989 to file proposed findings of fact.

Neither party submitted proposed findings of fact.

FINDINGS OF FACT

1. In an attempt to practice a profession at which she anticipates success and to provide for herself and her son, Petitioner applied for licensure as a real estate salesman on July 28, 1988.

   
   

2. Petitioner successfully completed the licensure examination on her first attempt. Subsequently, Respondent denied her licensure based on her conviction of conspiracy to import marijuana.

   
   

3. In 1985, Ms. Cepada was convicted of conspiracy to import a controlled substance, marijuana, and served her sentence without disciplinary problems. While in prison, Ms. Cepada worked as a teacher aide assisting Spanish speaking prisoners to earn their graduate equivalency degree. After having served two years of her five year sentence, she was released.

   
   

4. Since her release, Ms. Cepada has been employed in trustworthy and responsible positions, having served as a clerk in a perfume store and with an insurance company. She is also active in her church and participates in a church sponsored program which provides counselling for prisoners. After licensure, Ms. Cepada has been assured a position with a licensed real estate broker.

   
   

5. Through these experiences, Ms. Cepada has exhibited good conduct and has established a good reputation in the community. Further, sufficient time has elapsed since her conviction to test and demonstrate these traits as well as those of trustworthiness, honesty and truthfulness.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to and over the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

   
   

7. As the applicant seeking licensure, Petitioner bears the burden of showing entitlement to licensure. Florida Department of Transportation v.

   J.W.C. Company, Inc., 396 So.2d 778,788 (Fla. 1st DCA 1981).

   
   

8. Pertinent to this case, section 475.17(1)(a), Florida Statutes, states, in part,

   
   

   An applicant for licensure ... must be ... honest, truthful, trustworthy, and of

   good character ... If the applicant has been guilty of conduct or

   practices ... which would have been grounds for revoking or suspending his license ... 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 ..., it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration.

   Further, grounds for revocation of licensure referenced above are found in Section 475.25(1)(f), Florida Statutes and include conviction of a crime involving moral turpitude or fraudulent or dishonest dealing.

   
   

9. Moral turpitude, as used in Chapter 475, Florida Statutes, has been defined as involving "duties owed by man to society, as well as acts `contrary to justice, honesty, principle or good morals.'" Pearl v. Florida Real Estate Commission, 394 So.2d 189, 191 (Fla. 3d DCA 1981). Conspiracy to distribute marijuana may be so characterized. See Pearl at 191-92. Petitioner's conviction of the crime of conspiracy to import a controlled substance, therefore, would constitute cause to revoke a license of a real estate salesman.

   
   

10. However, under Section 475(1)(a), Florida Statutes, Petitioner may overcome the denial of licensure by showing that sufficient time has passed and that since her conviction she has rehabilitated herself. Aquino v. Department of Professional Regulation, Board of Real Estate, 430 So.2d 598 (Fla. 4th DCA 1983); Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So.2d 1056 1988).

    
    

11. Notwithstanding her conviction in 1985 for conspiracy to import marijuana, Petitioner alleges that she is entitled to licensure as a real estate salesman since she has fulfilled the requirements of Section 475.17(1)(a), Florida Statutes. Here, Petitioner has met her burden and the requirements of Section 475.17(1)(a). Four years have passed since her conviction. During that time, the testimony shows that she is of worthy character, and since her conviction, she has demonstrated desire and ability to be a productive and trustworthy member of the community at large.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the application for licensure of Sonia Cepada be GRANTED. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 5th day of June

1989.

JANE C. HAYMAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 1989.

COPIES FURNISHED:

Marilyn Capo, Esquire

780 North West Le Jeune Road Suite 504

Miami, Florida 33433

Manuel E. Oliver, Esquire Assistant Attorney General

400 West Robinson Street Suite 212

Orlando, Florida 32801

Darlene F. Keller, Director

Division of Real Estate Department of Professional Regulation

400 West Robinson Street Orlando, Florida 32801

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

FLORIDA REAL ESTATE COMMISSION

SONIA L. CEPEDA,

Petitioner,

vs. DOAH CASE NO. 88-5982

FLORIDA REAL ESTATE COMMISSION,

Respondent.

/

FINAL ORDER

On July 19, 1989, this case came on to be heard by the Florida Real Estate Commission upon the Hearing Officer's Recommended Order and the Respondent's Exceptions thereto; and after argument of counsel and after a complete review of the record, the Commission, being otherwise fully advised in the premises, ORDERS:

1. That the Respondent's Exceptions to the Hearing Officer's Findings of Fact Nos. 2, 4 and 5 be accepted and adopted and that said Findings of Fact by the Hearing Officer be rejected as not being supported by competent, substantial evidence in the record.

2. That the Hearing Officer's Conclusion of Law No. 6 be rejected and that the Respondent's Exception thereto be accepted and adopted as not enough time has elapsed since Petitioner's conviction and insufficient proof of Petitioner's subsequent good conduct exists to conclude that the interest of the public and the investors would not likely to be endangered by the granting of Petitioner's licensure.

   
   

3. That the Hearing Officer's Recommended Order be rejected and the Petitioner's application for examination for licensure be denied.

Copies of the Hearing Officer's Recommended Order and the Respondent's Exceptions hereto are attached hereto as Exhibits A and B and made a part hereof.

This Order shall be effective 30 days from date of filing with the Clerk of the Department of Professional Regulation. However, any party affected by this Order has the right to seek judicial review, pursuant to s. 120.68, Florida Statutes, and Rule 9.110, Florida Rules of Appellate Procedure.

Within, 30 days of the filing date of this Order, review proceedings may be instituted by filing a Notice of Appeal with the Clerk of the Department of Professional Regulation at 400 West Robinson Street, Suite 309, Orlando, Florida 32801. At the same time, a copy of the Notice of Appeal, with applicable filing fees, must be filed with the appropriate District Court of Appeal.

DONE AND ORDERED this 19th day of July, 1989 in Orlando, Florida.

Vice Chairman

Florida Real Estate Commission

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing was sent by U.S Mail to: Marilyn Capo, Esquire, 780 Northwest LeJeune Road, Suite 504, Miami, Fl 33433; to Hearing Officer Jane Hayman, Division of Administrative Hearings, 1230 Apalachee Parkway; Tallahassee, Fl 32399-1550; and to Manuel E. Oliver, Assistant Attorney General, Suite 212, 400 West Robinson Street, Orlando, Fl 32801, this 20th day of July, 1989.

Director

Docket for Case No: 88-005982

Orders for Case No: 88-005982