STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE CHARLES FAIR, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7254

) DEPARTMENT OF BUSINESS REGULATION, ) DIVISION OF FLORIDA LAND SALES, ) CONDOMINIUMS, AND MOBILE HOMES, )

)

Respondent. )

)

RECOMMENDED ORDER

On February 19, 1993, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: George Charles Fair, pro se

1540 Fife Court

Dunedin, Florida 34698

For Respondent: Jeanne M. L. Player, Esquire

Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent should grant the Petitioner's application for licensure as a "community association manager."

PRELIMINARY STATEMENT

On or about October 22, 1992, the Respondent issued a Notice and Order of Rejection, which gave the Petitioner notice that the Respondent intended to deny the Petitioner's application for licensure as a "community association manager." The Petitioner requested formal administrative proceedings. The matter was referred to the Division of Administrative Hearings on December 7, 1992, and a Notice of Hearing was issued on January 11, 1993, scheduling the case for hearing.

At the final hearing, the Petitioner testified in his own behalf and had Petitioner's Exhibit 1 admitted in evidence. The Respondent called two witnesses and had Respondent's Exhibits 1 through 6 admitted in evidence.

At the end of the hearing, the parties were given ten days in which to file proposed recommended orders. Only the Respondent filed one. The proposed findings of fact contained in the Respondent's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.

FINDINGS OF FACT

1. The Petitioner, George Charles Fair, applied for licensure as a "community association manager" on or about April 26, 1992. His application included three character references.

   
   

2. Licensure as a "community association manager" is a license to perform community association management services to one or more associations containing more than 50 units, or having an annual budget or budgets in excess of $100,000. A "community association manager" is licensed to control or disburse funds of a community association, prepare budgets or other financial documents for a community association, assist in the noticing or conduct of community association meetings, and coordinate maintenance for the residential development and other day-to-day services involved with the operation of a community association. Performance of the functions of a "community association manager" involves specialized knowledge, judgment and managerial skill; it is not a clerical or ministerial position under the direct supervision of another. It can involve writing checks, disbursing association funds, accounting for and depositing unit owner assessments, some of which might be paid in cash, placing association funds in investment accounts, and budgeting association funds. Depending on the size of the association, a "community association manager" could have access to subtantial sums of money in the form of cash, credit cards, and checking accounts.

   
   

3. On or about August 20, 1990, the Petitioner pled guilty to and was convicted of one federal felony count of misapplication of bank funds. While an officer with the Southeast Bank in Dunedin, Florida, the Petitioner made a supposed loan of approximately $60,000 to a fictitious borrower. He personally used the proceeds of the supposed loan. For a time, he paid the interest on the "loan." But when he did not repay the "loan," the bank discovered what the Petitioner had done and reported him to the authorities.

   
   

4. Upon his conviction for the offense, the Petitioner was sentenced to ten months in prison. After serving the prison term, the Petitioner was released under the supervision of a probation officer for a period of 24 months. The Petitioner also was ordered to pay restitution to the Southeast Bank "in the amount of $61,634.92 in payments under such terms and conditions as prescribed by the probation office." The Petitioner is making small monthly payments at this time due to his lack of funds and unemployment.

   
   

5. The Petitioner's federal conviction is for conduct that is related to the work of a "community association manager." Despite the Petitioner's character references, cooperation with federal authorities and personal assurances that he would not repeat the kind of conduct that resulted the federal conviction, inadequate time has passed for the Petitioner to be able to prove that he has rehabilitated himself so as to be trusted handling others' money.

   
   

6. The Petitioner testified that he was conditionally offered a job that primarily would involve soliciting community association clients for a property management company. He understood that licensure as a "community association

   manager" would be necessary for him to get and perform the job. That is why he applied for licensure.

   
   

7. The Petitioner's testimony at final hearing was to the effect that the real reason he asked for formal administrative proceedings was to raise objections to the manner in which his application was processed by the Respondent. First, he felt that he was invited to apply for licensure despite his conviction, and to pay his application fee, although his conviction was enough to preclude licensure. Second, he felt that the process took too long, especially if denial was a foregone conclusion in view of the conviction. Third, the application was denied although his references were not contacted by the Respondent.

   
   

8. As to the Petitioner's first complaint, it was not demonstrated that the Petitioner fully explained to the representatives of the Respondent with whom he spoke on the telephone, before he applied, the nature of the offense for which he was convicted. To the contrary, he asked generally whether a felony conviction necessarily would preclude licensure, and he was told, "not necessarily." He testified that he did not think it would make any difference what kind of felony it was.

   
   

9. As to the second complaint, the process indeed seemed to be unduly prolonged. The Petitioner received no response to his application by June 17, 1992, and telephoned to inquire. He was told the application was just sent "downstairs" for investigation of the criminal conviction. He then got a letter asking for an explanation of the conviction, and he supplied the information by letter dated June 26, 1992. In two subsequent telephone inquiries, the Petitioner was told that his application was "in process." In three telephone inquiries on August 18 and 19, 1992, the Petitioner was told that the person responsible for his application was on vacation until August 24, 1992. The Petitioner called the person back on August 24 and was told that his application was on her desk but that she had to review it. She called the Petitioner the next day to tell him that his application was being denied, but the written Notice and Order of Rejection was not issued until on or about October 22, 1992.

   
   

10. As for the third complaint, the evidence was that the Petitioner's written character references in his application were considered even though the references themselves were not personally contacted.

    
    

11. The Petitioner suggested, as a compromise resolution to his license application, that he be issued a conditional license. He envisions that the job he has been offered, conditioned upon his licensure, will not require that he handle funds but only that he solicit association clients for his employer. He suggests the issuance of a conditional or probationary license that would not allow him to handle money for a time certain.

    
    

12. The Respondent's agency policy and practice is not to issue "conditional" or "probationary" or "conditional" licenses, or the like.

    
    

    CONCLUSIONS OF LAW

    
    

13. Section 468.431, Fla. Stat. (1991), includes, in pertinent part, the following definitions:

    
    

    1. "Community association" means a residential homeowners' association in which membership is a condition of ownership of a

       unit . . ..

    2. "Community association management" means any of the following practices requiring substantial specialized knowledge, judgment, and managerial skill when done for remuneration and for the public and when the association or associations served contain more than 50 units or have an annual budget or budgets in excess of $100,000: controlling or disbursing funds of a community association, preparing budgets or other financial documents for a community associatin, assisting in the noticing or conduct of community association meetings, and coordinating maintenance for the residential development and other day-to-day services involved with the operation of a community association. A person who performs clerical or ministerial functions under the direct supervision and control of a licensed manager or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described in this subsection is not required to be licensed under this part.

       
       

14. Section 468.432(1), Fla. Stat. (1991), provides in pertinent part: "A person shall not manage or hold himself out to the public as being able to manage a community association in this state unless he is licensed by the department." Section 468.431(4) defines the "department" as the Department of Business Regulation.

    
    

15. Section 468.433, Fla. Stat. (1991), provides in pertinent part:

    
    

    1. The department shall administer, coordinate, and enforce the provisions of this part, evaluate the qualifications of applicants, supervise the examiniation of applicants, and be responsible for the granting of licenses and certificates to qualified persons and for withholding licenses and certificates from unqualified persons....

       * * *

       (4) To be eligible for licensure by the department as a community association manager, the applicant shall:

       (a) Be of good moral character.

       * * *

       
       

16. Section 468.433(6), Fla. Stat. (1991), requires the department to establish by rule a classification of licensure for certain community association managers who have been licensed for at least two years, but the statutes do not establish, or authorize the establishment of, any conditional or probationary licensure.

    
    

17. Section 468.435(1)(d), Fla. Stat. (1991), requires the department to establish, by rule, among other kinds of license fees, a "provisional license

    fee" of not less than $25, or more than $100. But the statutes do not further define "provisional license."

    
    

18. The parties have not cited to any administrative rule addressing "conditional" or "provisional" licensure, or the like. Research indicates that

    F.A.C. Rule 7D-55.001 is entitled "Community Association Manager Provisional License," but the rule was repealed on March 22, 1989. Research discloses no other administrative rule addressing "conditional" or "provisional" licensure, or the like.

    
    

19. The Respondent's agency policy and practice is not to issue "conditional" or "probationary" or "conditional" licenses, or the like.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent enter a final order denying the Petitioner's application for licensure as a "community association manager."

RECOMMENDED this 24th day of March, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 24th day of March, 1993.

COPIES FURNISHED:

George Charles Fair 1540 Fife Court

Dunedin, Florida 34698

Jeanne M. L. Player, Esquire Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007

Henry M. Solares, Director Florida Land Sales, Condominiums,

and Mobile Homes

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee Florida 32399-1000

Donald D. Conn, Esquire General Counsel

Department of Business Regulation The Johns Building

725 South Bronough Street Tallahassee Florida 32399-1000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes concerning its rules on the deadline for filing exceptions to this Recommended Order.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF BUSINESS REGULATION

DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOMES

GEORGE CHARLES FAIR,

Petitioner,

1. DBR Docket No. CC92197

   DOAH Case No. 92-7254

   DEPARTMENT OF BUSINESS REGULATION, DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS, AND MOBILE HOMES,

   
   

   Respondent

   /

   
   

   FINAL ORDER

   
   

   This cause comes before the Department of Business Regulation, Division of Florida Land Sales, Condominiums, and Mobile Homes (Division), for consideration and final agency action. On October 22, 1992, the Respondent Division issued a Notice and Order of Rejection denying the application of the Petitioner, George Charles Fair, for licensure as a community association manager. The Petitioner filed a request for a hearing pursuant to s. 120.57(1), Fla. Stat.

   
   

   On February 18, 1993, the matter was heard in Clearwater, Florida, by J. Lawrence Johnston, the Hearing Officer assigned by the Division of

   Administrative Hearings. After consideration of the evidence presented at the hearing and of Respondent's proposed findings of facts and conclusions of law, 1/ the Hearing Officer issued his Recommended Order on March 24, 1993. The Order recommended that the application of George Charles Fair be denied.

   Neither party filed exceptions to the Recommended Order.

   
   

   Upon consideration of the foregoing and the entire record in this action, it is hereby

   
   

   ORDERED as follows:

   
   

   1. The Hearing Officer's Findings of Fact are adopted in full as this agency's Findings of Fact.

      
      

   2. The Hearing Officer's Conclusions of Law are adopted in full as this agency's Conclusions of Law. The Conclusion of Law appearing below is added to those recommended by the Hearing Officer:

      
      

      17. Petitioner's application for licensure is denied because the federal felony of which he was convicted in 1990 was for conduct that is related to the work of a community association manager.

      
      

   3. The Hearing Officer's Recommendation that the application of George Charles Fair for licensure as a community association manager be rejected is accepted as being appropriate to the disposition of this case. Accordingly, the application of George Charles Fair for licensure as a community association manager is DENIED.

DONE AND ORDERED this 28th day of April 1993, at Tallahassee, Leon County, Florida.

HENRY M. SOLARES, DIRECTOR

Division of Florida Land Sales, Condominiums, and Mobile Homes Department of Business Regulation State of Florida

ENDNOTE

1/ Petitioner did not submit a proposed recommended order.

RIGHT TO APPEAL

THIS ORDER CONSTITUTES FINAL AGENCY ACTION AND MAY BE APPEALED BY PETITIONER OR INTERVENOR PURSUANT TO THE FLORIDA RULES OF APPELLATE PROCEDURE AND SECTION 120.68, FLORIDA STATUTES, BY FILING A NOTICE OF APPEAL CONFORMING TO THE REQUIREMENTS OF RULE 9.110(d), FLORIDA RULES OF APPELLATE PROCEDURE, BOTH WITH THE APPROPRIATE DISTRICT COURT OF APPEAL ACCOMPANIED BY THE APPROPRIATE FILING FEES AND WITH CAROLYN HOWARD, DOCKET CLERK FOR THE DIVISION OF FLORIDA LAND SALES, CONDOMINIUMS AND MOBILE HOME WITHIN THIRTY (30) DAYS OF THE RENDITION OF THIS ORDER.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Certified Mail to GEORGE C. FAIR, 1540 Fife Court, Dunedin, Florida 34698 this 28th day of April, 1993.

CAROLYN HOWARD, DOCKET CLERK

Copies to:

Faye Mayberry

Bureau of Condominiums Jeanne M. L. Player Assistant General Counsel

Docket for Case No: 92-007254

Orders for Case No: 92-007254