STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

CARMEN R. TORRES, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2290

)

FLORIDA REAL ESTATE )

COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Williston, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on September 12, 1991. The Division of Administrative Hearings received the hearing transcript on September 23, 1991. Although agreeing to an extended time for filing proposed recommended orders, neither party has in fact filed a proposed recommended order.

APPEARANCES

Carmen R. Torres For Petitioner: P.O. Box 63

Morriston, Florida 32668

Joselyn M. Price, Esquire For Respondent: Suite 107 South

400 W. Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether respondent should deny petitioner's application for a real estate salesman's license because she set fire to her car in Holyoke, Massachusetts, in 1989?

PRELIMINARY STATEMENT

On November 19, 1990, respondent received petitioner's application for licensure as a real estate salesman. After the Commission denied the application, on January 16, 1991, petitioner requested an informal hearing before the Commission. By letter dated March 7, 1991, respondent's James T. Moore advised petitioner that she was scheduled to appear before the Commission on March 19, 1991, and wrote, "If you appear and are denied, your only recourse will be to request a formal hearing." Respondent's Exhibit No. 1.

In response to a letter dated March 26, 1991, advising that the Commission had a week before again voted to deny licensure, petitioner requested a formal hearing. Respondent transmitted the request the Division of Administrative

Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1989). In subsequent correspondence, respondent's counsel stated: "Specifically, the reason for the Commission's denial was the following: In 1989 in Holyoke, Massachusetts, you were found guilty of setting fire to a motor vehicle."

FINDINGS OF FACT

1. The mother of four children, Carmen R. Torres lived in Springfield, Massachusetts, for the ten years preceding her move to the vicinity of Williston, Florida, on March 9, 1990, when her husband retired. A homemaker, she did not work outside the home.

   
   

2. In 1989, she bought a brand new Renault Alliance, paying the dealer cash she borrowed elsewhere. Although the car was "no good," the dealer would not honor the warranty. Intending to destroy the car in order to collect insurance money, she threw a bottle of gasoline inside the car, then lit it.

   
   

3. Afterwards she regretted what she had done, decided against submitting an insurance claim, cancelled the insurance policy that covered the car, and gave the car away for parts. She testified convincingly that she has never done anything remotely like this, before or since, and that she was "not the type of person to do that." T.13.

   
   

4. Six months later she told a fireman she had set the car on fire, and the prosecutor's office was notified. Eventually petitioner was found guilty of a type of arson, fined $500 and required to perform community service, all of which she disclosed on her application for licensure.

   
   

5. Since the move to Florida, petitioner has enjoyed an excellent reputation among her new neighbors. She and her husband have built a house on a

   1.25 acre lot in Williston Highlands, "the nicest home . . . in [the] whole development." T.17. She and her husband keep the lawn "manicured."

   
   

6. In Florida, she worked three months as a cashier for Kwik King. Since her brush with the law in Massachusetts, she has had no encounter with any law enforcement officer.

   
   

   CONCLUSIONS OF LAW

   
   

7. Since the Commission referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1990 Supp.), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1990 Supp.).

   
   

8. The courts view it "as fundamental that an applicant for a license or permit carries 'the ultimate burden of persuasion' of entitlement through all proceedings, of whatever nature, until such time as final action has been taken by the agency." Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778, 787 (Fla. 1st DCA 1981); Zemour, Inc., v. State Division of Beverage,

   347 So.2d 1102 (Fla. 1st DCA 1977) (lack of good moral character found "from evidence submitted by the applicant"). See generally Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

9. Section 475.17(1)(a), Florida Statutes (1989), entitled "Qualifications for practice", sets out the criteria an applicant for licensure must meet. The subsection provides:

   An applicant for licensure who is a natural person must be at least 18 years of age; hold a high school diploma or its equivalent; be honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for an active broker's license or a salesman's license must be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom he may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or his registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or 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.

   
   

   Petitioner does not dispute respondent's premise that setting fire to the Renault (and/or the judicial sequelale) "would have been grounds for revoking or suspending h[er] license . . . had the applicant then been registered," Section 475.17(1)(a), Florida Statutes (1989); while respondent asserts no other obstacle to petitioner's license.

   
   

10. The issue thus becomes whether licensing petitioner "will not likely" endanger "the interest of the public and investors" "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient." Section 475.17(1)(a), Florida Statutes (1989). Respondent offered nothing to contest petitioner's testimony and that of her witnesses to her good conduct and reputation both before and after the fire. Of particular significance is her spontaneous decision, immediately following the conflagration, to abandon any effort to obtain insurance money.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That respondent grant petitioner's application for licensure as a real estate agent.

DONE and ENTERED this 30th day of October, 1991, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1991.

COPIES FURNISHED:

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Darlene F. Keller, Division Director Division of Real Estate

400 W. Robinson St.

P.O. Box 1900

Orlando, FL 32802-1900

Carmen R. Torres

P.O. Box 63 Morriston, FL 32668

Joselyn M. Price, Esquire Suite 107 South

400 W. Robinson Street Orlando, FL 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO 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: 91-002290

Orders for Case No: 91-002290