STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE ANGEL FRIAS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-1163

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written Notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Daniel Manry, held a formal hearing in the above-styled case on April 11, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Mr. Jose A. Frias, pro se

555 Northeast 15th Street, Apartment 709 Miami, Florida 33132

For Respondent: Joselyn M. Price, Esquire

Department of Legal Affairs

400 West Robinson Street, Suite 212 Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Petitioner's application for licensure as a real estate salesman should be granted.

PRELIMINARY STATEMENT

By letter dated February 11, 1991, Petitioner requested a formal hearing to contest Respondent's denial of his application for licensure as a real estate salesman. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on February 19, 1991, and assigned to Hearing Officer Michael Parrish on February 27, 1991. A formal hearing was scheduled for April 11, 1991, pursuant to a Notice of Hearing issued on March 15, 1991. The case was transferred to the undersigned prior to the date of the formal hearing.

At the formal hearing, Petitioner testified in his own behalf, presented the testimony of one witness, and submitted two exhibits for admission in evidence. Petitioner's Exhibit 1 was admitted in evidence without objection. Petitioner's Exhibit 2 was not admitted in evidence. 1/ Respondent called no witnesses and submitted one exhibit which was admitted in evidence without objection. 2/

A transcript of the record of the formal hearing was filed with the undersigned on April 24, 1991. Neither party filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Respondent determined that Petitioner is not qualified for licensure as a real estate salesman due to Petitioner's criminal record and failure to disclose criminal violations. On May 25, 1990, Petitioner was charged by the Metro Dade Police Department with possession of cocaine, resisting arrest with violence, and battery on a police officer. Petitioner entered a plea of nolo contendere to the criminal charges. Adjudication of guilt was withheld and Petitioner was placed on probation for 12 months. Petitioner's probation was terminated after six months for good behavior.

   
   

2. Petitioner failed to disclose on his application for licensure that he had previously entered a plea of nolo contendere with respect to other criminal charges in 1980 and 1982. On April 2, 1980, Petitioner was charged by the Metro Dade Police Department with auto theft and petty larceny. On May 2, 1982, Petitioner was charged by the Alachua County Sheriff's Office with unauthorized use of a motor vehicle and failure to display a driver's license. Petitioner entered a plea of nolo contendere to the charges of auto theft, petty larceny, unauthorized use of a motor vehicle, and failure to display a driver's license.

   
   

3. Petitioner's failure to disclose his prior criminal record ignored the express terms of his application for licensure. Line seven in the application requested Petitioner to disclose any crime for which Petitioner ever entered a plea of nolo contendere even if adjudication was withheld. Petitioner disclosed the criminal case in 1990 but failed to disclose the criminal cases in 1980 and 1982. Petitioner noted next to the item disclosed by him that adjudication was withheld.

   
   

4. Petitioner indicated on his application next to his disclosure of the 1990 criminal charges that adjudication was withheld. When asked during the formal hearing why he did not disclose the 1980 and 1982 criminal charges, Petitioner said he thought he did not have to disclose criminal charges for which adjudication was withheld.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

6. Petitioner, as the applicant, has the burden of proof in this proceeding. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 19810; Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Petitioner must demonstrate by a preponderance of the evidence that he is qualified for licensure.

   
   

7. Petitioner failed to satisfy his burden of proof in this proceeding. Petitioner responded untruthfully to a question on the application asking if Petitioner had ever ". . . been convicted of a crime, found guilty, or entered a plea of nolo contendere (no contest), even if adjudication was withheld . . ." Petitioner disclosed only one of three offenses to which he had pleaded nolo contendere.

8. Petitioner's explanation of his failure to disclose two prior criminal offenses was inconsistent and patently implausible. Notably, Petitioner stated that he thought it was unnecessary to disclose a prior criminal offense for which adjudication was withheld. Petitioner's explanation is inconsistent with the express terms of the application and Petitioner's own act of noting that adjudication was withheld for the offense disclosed. Petitioner's explanation of the circumstances surrounding the offense disclosed was also inconsistent and vague.

   
   

9. Untruthfully responding to inquiries of the Respondent is a valid ground for denying a license. Gentile, M.D., v. Department of Professional Regulation, Board of Medical Examiners, 448 So.2d 1087 (Fla. 1st DCA 1984). Such an act evidences sufficient lack of good moral character to deny Petitioner's application for a license as a real estate salesman.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's application for licensure should be DENIED.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of June 1991.

DANIEL MANRY

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 19th day of June 1991.

ENDNOTES

1/ Petitioner's Exhibit 1 is a letter from Petitioner to Hearing Officer Parrish discussing the terms of settlement that would be acceptable to Petitioner. Petitioner's Exhibit 2 is a copy of the test results of a drug test voluntarily taken by Petitioner prior to the formal hearing.

2/ Respondent's exhibit is the licensure file of Petitioner.

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate

Department of Professional Regulation

400 West Robinson Street

P.O. Box 1900 Orlando, FL 32801

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

James H. Gillis, Esquire Senior Attorney

Department of Professional Regulation Legal Section

Division of Real Estate Hurston Building North Tower

400 West Robinson Street Suite N-308

P.O. Box 1900

Orlando, Florida 32802-1900

Manuel Gonzalez, Jr., Esquire Manuel Gonzalez, Jr., P.A.

1531 Northwest 13th Court Miami, Florida 33325

Docket for Case No: 91-001163

Orders for Case No: 91-001163