STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LLOYD ROBERT DEMPSEY, )

)

Petitioner, )

)

vs. ) Case No. 97-4986

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on February 6, 1998, via video teleconference, with the Petitioner and the Respondent appearing at Miami, Florida, before Patricia Hart Malono, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Lloyd Robert Dempsey, pro se

5577 La Gorce Drive

Miami Beach, Florida 33140-2137

For Respondent: Andrea D. Perkins

Assistant Attorney General Florida Real Estate Commission

400 West Robinson Street Suite 107, South Tower Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether the Petitioner's application for licensure as a real estate salesperson should be granted or denied.

PRELIMINARY STATEMENT

In an order entered October 10, 1997, the Florida Real Estate Commission ("Commission") notified Lloyd Robert Dempsey

that his application for licensure was denied "[b]ased on your answer to Questions #9 and #10 of the licensing application and on your criminal record according to the appropriate law enforcement agency." Mr. Dempsey timely requested a formal administrative hearing, and the Commission transmitted this case to the Division of Administrative Hearings for assignment of an administrative law judge. Pursuant to notice, the final hearing was conducted by video teleconference on February 6, 1998.

At the hearing, Mr. Dempsey testified in his own behalf and presented the testimony of Shirley Dempsey. Petitioner's Exhibit 1 was received into evidence. The Commission did not call any witnesses, but presented its case by means of Respondent's Exhibits 1 through 17, and 19, which were received into evidence without objection.

No transcript of the proceedings was filed with the Division of Administrative Hearings. The Commission timely filed its proposed findings of fact and conclusions of law, which have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made:

1. The Florida Real Estate Commission operates within the Department of Business and Professional Regulation and is the entity responsible for certifying to the Department that an applicant for licensure under Chapter 475 is qualified to

   practice as a real estate broker or salesperson. Sections 475.02 and .181, Florida Statutes.

2. On or about January 24, 1997, Mr. Dempsey submitted to the Commission an application for licensure as a real estate salesperson.

3. Mr. Dempsey answered "yes" to Question No. 9 on the application, which asks in pertinent part: "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" He attached the details to his application.

4. Mr. Dempsey answered "yes" to Question No. 10(a) on the application, which asks in pertinent part: "Has any judgment or decree of a court been entered against you in this or any other state, . . . in which you were charged . . . with any fraudulent or dishonest dealing?" Mr. Dempsey attached the details of a 1988 conviction for mail fraud to his application.

5. On December 12, 1983, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, revoked Mr. Dempsey's probation and sentenced him to two years

   imprisonment based on his plea of guilty to three counts each of uttering a forged instrument and of second degree grand theft, one count of forgery, and one count of failure to redeliver a hired motor vehicle.

6. On July 9, 1986, the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, sentenced Mr. Dempsey to three and one-half years imprisonment based on his plea of guilty to one count of robbery, one count of aggravated

   battery, one count of possession of cocaine, two counts of forgery, two counts of uttering a forged instrument, and two counts of second degree grand theft.

7. On or about May 31, 1989, Judge Roettger of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to three years confinement based on a guilty plea to one count of mail fraud. The court withheld imposing a sentence of confinement on Mr. Dempsey for another count of the indictment, and sentenced him to five years probation, to run concurrently with the sentence of confinement.

8. On December 21, 1990, Judge Moreno of the United States District Court for the Southern District of Florida sentenced Mr. Dempsey to fifteen months' imprisonment based on his plea of guilty to one count of escape. The sentence of imprisonment was suspended, and Mr. Dempsey was placed on a three-year term of supervised release.

9. On January 29, 1992, Mr. Dempsey appeared in the Dade County Court and pled not guilty to one count of soliciting for prostitution. He was found guilty and sentenced to attend an AIDS course and to have an AIDS test.

10. On May 27, 1992, Judge Moreno of the United States District Court for the Southern District of Florida revoked Mr. Dempsey's supervised release and sentenced him to one-year imprisonment for violation of the terms of his supervised release.

11. On July 9, 1995, Judge Roettger of the United States District Court for the Southern District of Florida revoked

    Mr. Dempsey's probation and sentenced him to imprisonment for five years for violation of the conditions of his probation.

12. On January 14, 1997, Mr. Dempsey was paroled by the United States Parole Commission and released from the Marianna Federal Correctional Institution. His parole expires May 14, 2000.

13. Since January 23, 1997, Mr. Dempsey has been employed by Westgate Resorts, a timeshare resort in Miami, Florida. In July 1997, he was promoted to manager.

14. Since he was found guilty in 1988 of mail fraud,

    
    

    Mr. Dempsey's only criminal conviction was for the misdemeanor of soliciting for prostitution. His other offenses were violations of the terms of his supervised release on the charge of escape and of his probation on the charge of mail fraud.

15. The evidence presented in this case is not sufficient to establish that Mr. Dempsey, at this time, is of good character and trustworthiness and has a reputation for fair dealing. The uncontroverted evidence establishes that Mr. Dempsey has been convicted of crimes involving forgery, grand theft, and mail fraud.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to section 120.569 and .57(1), Florida Statutes (1997).

17. Because this case involves the denial of Mr. Dempsey's application for licensure as a real estate salesperson, it is his

    burden to prove by a preponderance of the evidence that he meets the minimum requirements for licensure. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932, 933-34 (Fla. 1996). The Commission, however, must prove by a

    preponderance of the evidence that Mr. Dempsey committed the acts upon which it bases its decision to deny the application for license renewal. Id.; see also Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d. 412, 415 (Fla. 4th DCA 1974)(generally, quantum of proof before an administrative agency is preponderance of the evidence).

18. Section 475.25(1)(f), Florida Statutes (1995), gives the commission the authority to deny an application for a real estate license if it finds that the applicant "[h]as been convicted or found guilty of . . . a crime in any jurisdiction which . . . involves moral turpitude or fraudulent or dishonest dealing.

19. In Pearl v. Florida Board of Real Estate, 394 So. 2d 189, 191 (Fla. 3d DCA 1981), the court found "that moral turpitude involves duties owed by man to society, as well as acts 'contrary to justice, honesty, principle, or good morals,'" and it held that "[c]rimes constituting violations of one's duties in dealings with members of society may be classified as crimes involving moral turpitude."

20. Based on the findings of fact herein, the Commission has met its burden of proving that Mr. Dempsey committed crimes involving moral turpitude or fraudulent or dishonest dealing.

21. However, the Commission's authority to deny an application for licensure is discretionary, as indicated by the legislature's use of the word "may" in Section 475.25(1). Accordingly, Mr. Dempsey has the opportunity to establish that he is entitled to licensure by proving that he is "honest, truthful, trustworthy, and of good character; and ha[s] a good reputation for fair dealing." Section 475.17(1)(a), Florida Statutes (1995).

22. Based on the findings of fact herein, Mr. Dempsey has not proven by a preponderance of the evidence that he is trustworthy or of good character or that he has a reputation for fair dealing. Perhaps, in time, he will be able to meet this burden of proving entitlement to licensure as a real estate salesperson. Cf. Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So. 2d 1056 (Fla. 5th DCA 1988)(even though applicant was convicted of crime involving moral turpitude, applicant may be granted license if he proves rehabilitation).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Real Estate Commission enter a final order denying the application of Lloyd Robert Dempsey for licensure as a real estate salesperson.

DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida.

PATRICIA HART MALONO

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 8th day of June, 1998.

COPIES FURNISHED:

Lloyd Robert Dempsey, pro se 5577 La Gorce Drive

Miami Beach, Florida 33140-2137

Andrea D. Perkins Assistant Attorney General

Florida Real Estate Commission

400 West Robinson Street Orlando, Florida 32801

Henry M. Solares Division Director Division of Real Estate

400 West Robinson Street Orlando, Florida 32802-1900

Lynda L. Goodgame General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

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: 97-004986

Orders for Case No: 97-004986