STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRY GEORGE SARDONE, JR., )

)

Petitioner, )

)

vs. ) Case No. 98-2906

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) COMMUNITY ASSOCIATION MANAGERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case by video teleconference on October 1, 1998, at sites located at West Palm Beach and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert P. Foley, Esquire

Comeau Building, Suite 711

319 Clematis Street

West Palm Beach, Florida 33401-4621

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

The issue for determination is whether Petitioner's application for licensure as a community association manager by examination should be approved.

PRELIMINARY STATEMENT

Jerry George Sardone, Jr. (Petitioner), made application for licensure as a community association manager by examination. By letter dated May 6, 1998, the Department of Business and Professional Regulation, Community Association Managers (Respondent), notified Petitioner that it intended to deny his application for failure to establish good moral character as required by Section 468.333, Florida Statutes, and

Rule 61-20.001(5)(a) and (b), Florida Administrative Code. By and through his counsel, Petitioner requested a hearing pursuant to Subsection 120.57(1), Florida Statutes. On June 29, 1998, this matter was referred to the Division of Administrative Hearings.

At hearing, neither Petitioner nor Respondent presented the testimony of any witnesses. Respondent entered six exhibits (Respondent's Exhibits numbered 1-6) into evidence.1

A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript.

Only Respondent filed a post-hearing submission which was filed

on November 2, 1998. The post-hearing submission has been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. By application dated January 3, 1998, Jerry George Sardone, Jr. (Petitioner), made application for licensure as a community association manager by examination. Petitioner's application was received by the Department of Business and Professional Regulation, Community Association Managers (Respondent), on or about January 15, 1998.

2. A section entitled "ESSENTIAL INFORMATION FOR APPLICANTS" was located on the first page of the application. The section provided, among other things, the following:

   Pursuant to Rule 61B-55.004(5)(a)5.[sic], Florida Administrative Code, failing to provide full and complete disclosure or failing to provide accurate information on this application for licensure or in materials subsequently provided to the Division [Division of Professions] will result in the denial of this application.

3. Question numbered 17 of the application inquired, among other things, about Petitioner's criminal background. Question numbered 17 stated in pertinent part:

   C) Criminal

   
   

   * * *

   
   

   2. Have you ever been convicted or been 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.

   
   

   Petitioner checked "no" to the above inquiry.

   
   

4. If an applicant checked "yes" to the above inquiry, the applicant was required to respond to additional inquiries regarding the applicant's criminal background. One of the additional inquiries involved the outcome of the criminal situation, and one of the possible outcomes listed was "Charges Dismissed (Nol Pros entered)."

5. By letter dated March 5, 1998, Respondent notified Petitioner that, among other things, his application was deficient. The deficiency indicated was that the criminal history received from the Florida Department of Law Enforcement and the Federal Bureau of Investigation indicated that Petitioner had a criminal history that he had not revealed on his application. The letter indicated the specific criminal history as follows:

   Specifically, you [Petitioner] were arrested on April 21, 1980 by the Sheriff's Office, West Palm Beach, Florida and charged with Failure to Appear for Arraignment/Resisting Arrest with Violence. You were arrested on November 15, 1988 by the County Police, Mineola, New York, and charged with Driving While Intoxicated. You were arrested on December 30, 1988 by the County Police, Mineola, New York, and charged with Burglary Second Degree, and Criminal Possession of a Weapon. The disposition of these incidents are either unclear or not known.

   The letter requested, among other things, certain information regarding the arrests, including disposition, within 60 days.

6. By letter dated April 7, 1998, Petitioner responded to Respondent's letter dated March 5, 1998. Petitioner provided certified copies of the courts' disposition records regarding the arrests in Respondent's letter dated March 5, 1998. Petitioner also indicated in his letter that he had mistakenly recalled that the charges were dismissed and, therefore, had not included them on his application.

7. By letter dated May 6, 1998, Respondent notified Petitioner of its intent to deny his application for licensure based upon Petitioner's failure to establish that he possessed good moral character. Respondent indicated, among other things, the basis for its determination that Petitioner lacked good moral character, namely, Petitioner's failure to include any arrests on his application, his arrest record, and his response that he submitted to the arrest record.

8. As to the arrest and charge on April 21, 1980, Petitioner pled guilty on June 23, 1980, to and was convicted of failure to appear for arraignment and a lesser charge of resisting arrest without violence. Adjudication was withheld and Petitioner was sentenced to six months probation.

9. As to the arrest and charge on November 15, 1988, Petitioner pled guilty on January 5, 1989, to and was convicted of a lesser charge of operating a motor vehicle while impaired by

   alcohol. Petitioner was ordered to pay $250 or spend five days in jail, and his license was ordered revoked.

10. As to the arrest and charge on December 30, 1988, Petitioner pled guilty on July 21, 1989, to and was convicted of a lesser charge of attempted petit larceny. The disposition was a conditional discharge.2

11. Respondent included another arrest in its letter dated May 6, 1998, which was not indicated in its letter dated March 5, 1998. The arrest occurred on December 9, 1984, when Petitioner was arrested by the Fort Lauderdale Police Department in Florida and charged with willful and wanton reckless driving. The disposition of that arrest was not established at hearing.

12. It is undisputed that Petitioner failed to include any of the criminal history on his application for licensure. Even if Petitioner thought that the charges were dismissed, as he indicated in his response letter, the application provided Petitioner an opportunity to list the charges and to indicate that they were dismissed.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes.

14. Petitioner, as the applicant, has the ultimate burden of proof to establish that he is entitled to have his application

    for licensure as a community association manager by examination approved. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

15. Section 468.433, Florida Statutes, provides in pertinent part:

    1. A person desiring to be licensed as a community association manager shall apply to the department to take the licensure examination. Each applicant must file a complete set of fingerprints that have been taken by an authorized law enforcement officer, which set of fingerprints shall be submitted to the Department of Law Enforcement for state processing and to the Federal Bureau of Investigation for federal processing. The cost of processing shall be borne by the applicant. 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.

             
             

       3. When an applicant is found to be unqualified for a license because of a lack of good moral character, the department shall furnish the applicant a statement containing its findings, a complete record of the evidence upon which the determination was

          based, and a notice of the rights of the applicant to a rehearing and appeal.

          
          

16. Rule 61-20.001, Florida Administrative Code, provides in pertinent part:

    1. Definitions.

       
       

       (a) "Charge" or "Charges". These terms refer to the official document in any criminal proceeding, whether styled an "Information", "Indictment", or otherwise, which document specifies the charges against the defendant, and which document is filed in any court of Florida, another state or country, or the United States government.

       * * *

       
       

       (c) "Criminal record". An applicant's criminal record, for purposes of this rule, includes any misdemeanor or felony charge filed against the applicant in the courts of any state or federal district or territory, or other country, on any subject matter whether related to community association management or not, concerning which charge the applicant was found guilty, or pled guilty, or pled no contest, regardless of whether or not there was an adjudication by the court, and regardless of whether the matter is under appeal by the applicant. The phrase includes such charges even where the crime was subsequently pardoned or civil rights have been restored. The phrase does not include criminal convictions which were finally reversed or vacated on appeal; nor does it include charges of which the applicant was found not guilty, or which were finally dismissed; nor does it include matters as to which at time of application an order of sealing or expunction has been issued by a court of competent jurisdiction.

       * * *

       (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 responsibilities 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.

             * * *

             
             

             1. Conduct of 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.

             2. 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 know 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.

             3. 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.

       3. If the applicant has failed to meet the requirements of paragraph (5)(a) of this rule and has been unable to present sufficient evidence to establish good moral character pursuant to paragraph (5)(b) of this rule within the time limitations of this rule and section 120.60, Florida Statutes, the application will be denied. However, the applicant will be given an opportunity by the division to waive the time limits of this rule and section 120.60, Florida Statutes, if

       it appears to the division that, through the submission of additional information or with additional time for investigation and verification, the applicant's good moral character might be established. The applicant bears the burden of affirmatively providing the division with evidence of good moral character.

17. Petitioner filed an application for licensure with Respondent indicating, among other things, no criminal history. Respondent accessed Petitioner's criminal history. In its letter to Petitioner dated March 5, 1998, Respondent notified Petitioner of a deficiency in his application for licensure, namely, the failure to include his criminal history and the disposition of each incident, with Respondent specifically identifying the criminal history in question. In its letter, Respondent also requested Petitioner to provide additional information regarding his criminal history, within a certain period of time.

    Petitioner responded to the request.

    
    

18. Respondent relied upon Petitioner's arrest record and his response in determining that Petitioner's application should be denied based upon a lack of good moral character. Respondent's determination that Petitioner lacked good moral character must be supported by clear and convincing evidence.

    Subsection 468.433(1)(b)2, Florida Statutes. The evidence relied upon by Respondent was clear and convincing.

19. Theft is considered to be a crime directly related to the professional responsibilities of a community association manager. Rule 61-20.001(5)(b)2, Florida Administrative Code.

    Petitioner pled guilty to attempted petit larceny in the State of New York. No evidence was presented to indicate whether New York's theft law was the same as or similar to Florida's theft law. Based on the lack of evidence to the contrary, this Administrative Law Judge assumes that theft in New York is theft in Florida.

20. As to the degree of the crime committed, it is reasonable to look to Florida's law for guidance. Florida's statutory provision on theft is found at Section 812.014, Florida Statutes (Supp. 1988), which provides in pertinent part:

    1. A person is guilty of theft if he knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently:

       1. Deprive the other person of a right to the property or a benefit therefrom.

       2. Appropriate the property to his own use or to the use of any person not entitled thereto.

          * * *

          
          

          (2)(d) Theft of any property not specified in paragraph (a), paragraph (b), or paragraph

       3. is petit theft and a misdemeanor of the second degree, punishable as provided in s. 775.082, or s. 775.083. Upon a second conviction for petit theft, the offender shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. . . .

          Florida's statutory provision makes no distinction between petit theft and attempted petit theft, and no distinction will be made by this Administrative Law Judge. Petitioner was convicted of a second degree misdemeanor.

21. The conviction of petit theft is considered along with other factors in determining Petitioner's good moral character. Rule 61-20.001(5)(b)1, Florida Administrative Code. Petitioner has the burden to demonstrate that he possesses good moral character in accordance with the statutory and rule provisions. Rule 61-20.001(5), Florida Administrative Code. Petitioner also has the responsibility to present mitigating circumstances, if any. Rule 61-20.001(5)(b)6, Florida Administrative Code.

22. Petitioner failed to establish that he possesses good moral character. Petitioner failed to indicate on his application for licensure that he had any criminal history. When confronted with his criminal history, Petitioner provided the information regarding his criminal history. All the unlawful acts evidence that Petitioner has exhibited a pattern of unlawful behavior even though not all of the unlawful acts in and of themselves are directly related to the professional responsibilities of a community association manager.

    Rule 61-20.001(5)(b)3, Florida Administrative Code. Moreover, Petitioner failed to demonstrate mitigating circumstances.

    Rule 61-20.001(5)(b)6, Florida Administrative Code.

    
    

23. The evidence also demonstrated that a substantial connection between the lack of good moral character of Petitioner and the professional responsibilities of a community association manager exists and that Petitioner's lack of good moral character is supported by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Business and Professional Regulation, Community Association Managers, enter a final order denying the application of Jerry George Sardone, Jr., for licensure as a community association manager by examination.

DONE AND ENTERED this 29th day of April, 1999, in Tallahassee, Leon County, Florida.

ERROL H. POWELL

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1999.

ENDNOTES

1/ Petitioner objected to Respondent's Exhibits numbered 2, 3, and 6. The Exhibits were admitted over objection.

2/ There was no testimony or documents explaining the definition of "conditional discharge." As a result, it is not known what the term "conditional discharge" means.

COPIES FURNISHED:

Robert P. Foley, Esquire Comeau Building, Suite 711

319 Clematis Street

West Palm Beach, Florida 33401-4621

Thomas G. Thomas Assistant General Counsel

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0750

William Woodyard, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Edward Broyles, Executive Director Regulatory Council of Community

Association of Managers Department of Business and

Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399

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: 98-002906

Orders for Case No: 98-002906