STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER A. KOOP, )

)

Petitioner, )

)

vs. ) Case No. 97-3118

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) COMMUNITY ASSOCIATION MANAGERS, )

)

Respondent. )

)

RECOMMENDED ORDER

On November 4, 1997, this cause came on for formal hearing by telephonic conference call between Tallahassee and South Daytona, Florida, before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: R. Michael Kennedy, Esquire

Kennedy & Pyle

687 Beeville Road, Suite A South Daytona, Florida 32119

For Respondent: Thomas G. Thomas

Assistant General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0750

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a

Community Association Manager by Examination should be granted.

PRELIMINARY STATEMENT

Petitioner presented the oral testimony of Morris Goodwin and Ursula Decker, and testified on his own behalf. Respondent did not present any witnesses.

Five joint exhibits were admitted into evidence, as was the parties' Joint Prehearing Stipulation. Petitioner had one after- filed exhibit admitted in evidence. Respondent did not offer any exhibits.

No transcript was provided. All timely Proposed Recommended Orders have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. When Petitioner was 20 years old, he and a group of other young adults stole approximately $15 worth of chrome off of a car in a used car lot.

2. Petitioner was arrested on November 11, 1983, by the Deland, Florida, Police Department. On February 1, 1984, Petitioner appeared in Volusia County Court and pled guilty to "Petit Theft" under Section 812.014(3)(a), Florida Statutes. This offense is a second degree misdemeanor punishable as provided in Sections 775.082 or 775.083, Florida Statutes. The court withheld adjudication of guilt, placed Petitioner on six months' probation and assessed Petitioner $75 in costs.

3. Petitioner was again arrested on March 12, 1993, by the Daytona Beach Shores, Florida, Police Department. Petitioner was

   charged with "Driving Under the Influence of Alcohol." Section 316.193, Florida Statutes, does not equate "Driving Under the Influence of Alcohol" with either a felony or a misdemeanor until the fourth conviction.

4. Petitioner appeared in Volusia County Court on May 11, 1993, and pled nolo contendere to the lesser charge of "reckless driving," under Section 316.192, Florida Statutes. Florida Department of Law Enforcement documents created at the time list this charge as a first degree misdemeanor.

5. In actuality, the offense of "reckless driving" is grouped under the "State Uniform Traffic Control" statutory Chapter. Without specifying whether or not "reckless driving" constitutes a felony or misdemeanor, Subsection 316.192(2)(a) provides that upon a first conviction of reckless driving the offender shall be punished by imprisonment for a period of not more than 90 days or by a fine of not less than $25 nor more than

   $500, or by both.

   
   

6. The court adjudicated Petitioner guilty of "reckless driving" and assessed $300 in fines and costs.

7. Petitioner's sentence fits the statutory category of a "first conviction," so it is concluded that this was his first reckless driving offense. There also is no evidence of any other traffic offenses committed by Petitioner.

8. The statutory trail of "reckless driving" runs through Sections 316.192, 322.291, 318.17, and 921.0012, and the

   undersigned has been unable to determine that a first offense under Section 316.192 constitutes either a misdemeanor or a felony. Sections 775.04 and 775.08(2), Florida Statutes, suggest that a first offense of "reckless driving" is neither a crime nor a misdemeanor.

9. From this information, it is concluded that there is no affirmative proof that Petitioner was convicted of a first degree misdemeanor. It is further concluded that there is no presumption created by his plea of nolo contendere to the reckless driving charge that Petitioner lost his civil rights.

10. On February 10, 1997, Petitioner submitted an application for licensure by examination to become a Community Association Manager.

11. Prior to his application for licensure, Petitioner had been the subject of an investigation by the Respondent Department for the unlicensed practice of community association management. As a trusted maintenance man for the same employer for over nine years, Petitioner had been trusted with money, with purchasing supplies and with doing maintenance work. He had acquitted himself honestly and honorably. Petitioner and his employer believe that the investigation arose out of a complaint that Petitioner also was giving instructions to other maintenance personnel or advising tenants, which arguably constitutes an element of the practice of Community Association Managment. They believe that the complaint was made by a rival condominium owner

    and/or by a resident manager whom the employer terminated. The investigation has been abated pending the instant application licensure proceeding.

12. The application submitted by Petitioner contained the following question regarding the applicant's criminal history:

    Have you ever been convicted or found guilty of a felony or misdemeanor, entered a plea of guilty or nolo contendere (no contest) to a felony or misdemeanor?

    Yes ( ) No ( ).

    
    

    This question applies to any violation of the laws of any state, territory, or country without regard to whether the matter is under appeal or you were placed on probation, had adjudication withheld, were paroled or pardoned.

    
    

    If you answer "NO" and it is later determined that the records have not been sealed or expunged, it will be considered that you knowingly provided inaccurate information on this application.

    
    

13. Petitioner marked the space for "No," and submitted no history of his offenses and pleas with his application.

14. On March 12, 1997, the Agency notified Petitioner that his application was deficient because the 1983 and 1993 arrests and case dispositions were not fully disclosed and documented on his application. He was given 60 days in which to submit the required information, which he did.

15. On May 28, 1997, Respondent sent Petitioner its Intent to Deny Community Association Manager's Application for Licensure by Examination for failure to establish good moral character as required by Section 468.433, Florida Statutes.

16. Petitioner explained that he thought the withholding

    of adjudication on the second degree misdemeanor guilty plea charge meant it was erased and need not be revealed. Although Petitioner conceded that no one told him adjudication was withheld on his 1993 reckless driving charge, he first testified that somehow he initially assumed that adjudication had been withheld. The remainder of his testimony, together with Petitioner's Exhibit 1, are construed to prove that, prior to Petitioner's completion and submission of his application for licensure in January of 1997, Petitioner had been informed that adjudication of guilt had not been withheld on his 1993 plea of nolo contendere to the charge of reckless driving, because the charge and conviction had shown up in a computer check when he tried to insure a new car prior to his professional licensure application.

17. While testifying at formal hearing, Petitioner initially stated that he had not fully read the application question concerning any criminal record. Then, he represented that he had not fully comprehended it. Finally, he said he thought the 1993 conviction constituted a traffic offense and was not a misdemeanor. Based on the difficulty of determining the classification of the 1993 conviction, the undersigned concludes that Petitioner did not willfully withhold that information, and need not have disclosed it as the application question was drafted. The question is ambiguous in first requesting information about nolo contendere pleas to felonies or

    misdemeanors and then adding "violation of the laws" as an afterthought.

18. Petitioner has not had any criminal charges or traffic offenses lodged against his record since 1993.

    
    

19. Petitioner has never been the subject of any civil law suit involving fraud, dishonesty, misrepresentation, or concealment of material facts.

20. Petitioner is highly respected by his direct supervisor and one of the owners of the buildings he maintains, both of whom testified to Petitioner's veracity, trustworthiness, and good moral character spanning 1988 through the date of formal hearing.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.

22. Part VIII of Chapter 468, Florida Statutes, governs regulation of community association managers in the State of Florida.

23. The Department of Business and Professional Regulation is the state agency vested with the authority to administer and enforce the provisions of Part VIII, Chapter 468, Florida Statutes. The Department's authority includes the power to

    approve or disapprove applications for licensure as a community association manager.

24. Section 468.433, Florida Statutes (Supp. 1996), provides in pertinent part,

1. . . . The Department shall examine each applicant who is at least 18 years of age and who the Department certifies is of good moral character.

   
   

   1. Good moral character means a personal history of honesty, fairness, and respect for the rights of others and for the laws of this state and nation.

      
      

   2. The Department may refuse to certify an applicant only if:

1. There is a substantial connection between the lack of good moral character of the applicant and the professional responsibilities of a community association manager; and

   
   

2. The finding by the Department of lack of good moral character is supported by clear and convincing evidence.

***

25. Rule 61.2001 [formerly Rule 61B-55.004], Florida Administrative Code, provides in pertinent part:

(5) Good Moral Character

1. Unless the Division denies the application for incompleteness under paragraph 4(a) of this rule, the Division shall evaluate the application and make appropriate inquiry to determine the applicant's moral character. Demonstration of all of the following will establish the applicant's good moral character:

   
   

   1. The completion of a criminal history records check by the Florida Department of Law Enforcement and self- disclosure by the applicant that establishes that the applicant has no criminal record; . . .

   
   

   ***

   
   

2. If the applicant has failed to establish good moral character under paragraph (5)(a), the Division will then consider the following additional factors to determine whether an applicant has good moral character for purposes of licensure under Chapter 468, Part VIII, Florida Statutes:

1. If commission of a second degree misdemeanor is the only reason the applicant did not meet the requirements of paragraph (5)(a) of this rule, the applicant will be considered to have good moral character. However, if there are also other reasons why the applicant did not

   meet the requirements of paragraph (5)(a) of this rule, the second degree misdemeanor will be considered along

   
   

   with the other factors in determining the applicant's good moral character;

   
   

2. If the applicant has committed a first degree misdemeanor or a felony, and the applicant's civil rights have been restored, this alone shall not preclude a finding of good moral character unless the crime is directly related to the professional responsibility of a community association manager. Crimes that are deemed to be directly related to the professional responsibilities of a community association manager include, for example, fraud, theft, burglary, bribery, arson, dealing in stolen property, forgery, uttering a forged instrument, sexual battery, lewd conduct, child or adult abuse, murder, manslaughter, assault, battery, and perjury. The applicant has the burden of proving restoration of civil rights by certified true copy of government or court records reflecting such action.

   
   

3. Whether the applicant has exhibited a pattern of unlawful behavior which would indicate that the applicant has little regard for the law, the rules of society, or the rights of others. All unlawful acts will be considered in determining whether the applicant has exhibited a pattern of unlawful behavior, even though any one of the unlawful acts by itself might not be directly related to the professional responsibilities of a community association manager.

   It is the applicant's repeated flaunting of or ignoring the law that evinces a lack of the moral character needed to perform the duties and assume the responsibilities of a community association manager, not the particular relationship of any one of the violations to the professional responsibilities of a community association manager.

   
   

4. Whether the applicant is disqualified from applying for a license by reason of section 775.16, Florida Statutes pertaining to conviction of certain offenses involving controlled substances.

   
   

5. Conduct the applicant relied upon by the division to determine that the applicant lacks good moral character shall be directly related to the professional responsibilities of a community association manager.

   
   

6. Written evidence the division will consider in determining the applicant's good moral character shall include:

   
   

   1. A statement from the applicant explaining the applicant's criminal/unlawful conduct and the reason the applicant believes the division should issue the license.

      
      

   2. Evidence as to the length of time since the conduct occurred or the age of the applicant at the time the conduct occurred;

      
      

   3. Evidence of successful rehabilitation;

      
      

   4. Recommendations from parole or probation employees who have supervised the applicant;

      
      

   5. Recommendations from the prosecuting attorney or sentencing judge;

      
      

   6. Character references from individuals other than immediate family members, who have known the applicant for 3 years or longer;

      
      

   7. Police reports or transcripts which reveal the underlying facts of the crime;

      
      

   8. Evidence that the conduct was an isolated occurrence contrary to the applicant's normal pattern of behavior; and

      
      

   9. Evidence of community or civil activities with which the applicant has been associated;

      
      

      It is the applicant's responsibility to provide such mitigating evidence to the division.

      
      

7. If the applicant makes incomplete, misleading or false statements regarding material facts in making an application, such action will establish the applicant's lack of good moral character, and the application will be denied.

1. The applicable rule provides that if the commission of a second degree misdemeanor (the 1983 petit theft case) is the only reason for license denial, the applicant is considered to have good moral character, but if there are other reasons for

   denial, they shall be considered. See Rule 61.2001(5)(b)1, Florida Administrative Code.

2. Assuming arguendo, but not ruling, that the 1993 reckless driving case constitutes "other reasons," or a first degree misdeamnor or felony, there is still no presumption created that Petitioner's civil rights have been removed and he need not affirmatively prove that they have been restored. See Rule 61.2001(5)(b)1. and 2, Florida Administrative Code. Likewise, "reckless driving" is not a crime listed under Rule 61.2001(5)(b)2., Florida Administrative Code, as directly related to the professional responsibilities of a community association manager.

3. The 1983 petit theft and the 1993 reckless driving charges and pleas exhibit no discernible "pattern" even if they legitimately can be considered together, which remains doubtful. They certainly do not demonstrate repeated flaunting or ignoring of the law. See Rule 61.2001.(5)(b)3, Florida Administrative Code.

4. The Petitioner has affirmatively presented evidence of current good moral character from non-relatives and those who have reason to know of his truth and veracity and inherent honesty in dealing with buildings, tenants, and condominium employees. His offenses are remote in time. See Rule 61.2001(5)(b)6(a-i), Florida Administrative Code.

5. Based on the peculiar nature of the statutory

classification of first offense reckless during, Petitioner's initial failure to disclose it is not in itself an impediment to licensure, given all the other evidence in this case. By itself, it is unrelated to the licensed profession, and should not bar Petitioner. His failure to disclose the 1983 petit theft was a clear misreading of the question and non-disclosure was wrong.

However, given the burden of proof on the agency, neither offense should bar his application in light of the evidence of subsequent rehabilitation presented herein.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Agency enter a Final Order permitting Petitioner to sit for the examination.

RECOMMENDED this 6th day of January, 1998, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1998.

COPIES FURNISHED:

Edward D. Broyles, Executive Director Department of Business and

Professional Regulation Division of Professions Regulatory Council of

Community Association Managers Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399

Lynda Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

R. Michael Kennedy, Esquire Kennedy & Pyle

687 Beeville Road, Suite A South Daytona, Florida 32119

Thomas G. Thomas Assistant General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-003118

Orders for Case No: 97-003118