STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSE C. FRANQUI, )

)

Petitioner, )

)

vs. ) Case No. 98-2987

)

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, DIVISION ) OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on August 12, 1998, by videoconference between Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: Jose Franqui, pro se

3511 Bonaire Boulevard

Apartment 2401

Kissimmee, Florida 34741

For Respondent: Manuel E. Oliver, Esquire

Department of Legal Affairs Suite 107, South Tower

400 West Robinson Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue for disposition is whether Petitioner, Mr.

Franqui, is entitled to licensure as a real estate salesperson in the State of Florida.

PRELIMINARY STATEMENT

In an order dated May 19, 1998, the Florida Real Estate Commission denied Mr. Franqui's application for licensure based on his allegedly false negative answer to a question regarding past criminal violations. When Mr. Franqui requested a formal hearing, the case was forwarded to the Division of Administrative Hearings and proceeded as described above.

At the hearing Mr. Franqui testified in his own behalf and presented the testimony of his colleague, Louis Umpierre. After the hearing Mr. Franqui also submitted a document he obtained from a court in the State of New York. This document has been received in evidence without objection as Petitioner's Exhibit No. 1.

Respondent presented no witnesses and offered a single composite exhibit, the application file, received in evidence as Respondent's Exhibit No. 1.

The transcript was filed on September 17, 1998, and Respondent's Proposed Recommended Order was filed on September 21, 1998.

FINDINGS OF FACT

1. Jose C. Franqui, a resident of Kissimmee, Florida, was previously licensed as a real estate broker in the State of New York until 1979. When the economy and interest rates slowed real estate sales, he moved back to his native Puerto Rico. Later, he returned to live in Florida and, on March 3, 1997, he applied to the Florida Real Estate Commission for licensure as a real estate

   salesperson.

   
   

2. The application, signed by an affidavit by Mr. Franqui, includes question no. 9 which inquires whether the applicant

   " . . . [Has] ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. . . ." In boldface print, the question on the application form warns that the answer will be checked against local, state, and federal records and that failure

   to answer accurately could cause denial of licensure.

   
   

3. Mr. Franqui answered "no" to question No.9.

   
   

4. In 1966 in New York, Mr. Franqui was charged and convicted of carrying concealed tear gas. He was fined $200. On May 14, 1978, also in New York, after an altercation with his wife, Mr. Franqui was arrested for assault. He spent a night in jail and was released. On August 11, 1978, he pled guilty to the lesser offense of harassment and received a "conditional discharge."

5. Neither of these incidents was disclosed by Mr. Franqui on his application for licensure. Instead, he claims he did not remember the disposition of the assault charge and that he considered the tear gas charge too remote in time to be of any consequence.

6. The explanations do not excuse Mr. Franqui's patent disregard of the terms of the question at issue. Nor does the

   testimony of Mr. Umpierre, a co-worker, that ". . . Franqui is a nice, honest person . . ." obviate the fact of Mr. Franqui's falsehood.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

8. As applicant, Mr. Franqui has the burden of establishing his qualifications for licensure. Those qualifications include that he

   ". . . 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 salesperson's license must be competent and qualified to make real estate transactions and conduct negotiations therefore with safety

   to investors and to those with whom the applicant may undertake a relationship of trust and confidence." Section 475.17(1)(a), Florida Statutes.

   
   

9. Mr. Franqui failed to meet his burden of proof. The actual criminal offenses, relatively minor, are far less an impediment than Mr. Franqui's attempt to conceal those offenses. The application form warned of the consequences of a false answer; the form invited the applicant to consult an attorney or the Division of Real Estate if he did not fully understand the question.

RECOMMENDATION

Based on the foregoing, it is recommended that the agency enter its final order denying Jose C. Franqui's application for licensure as a real estate salesperson.

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

MARY CLARK

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 October, 1998.

COPIES FURNISHED:

Jose C. Franqui, pro se 3511 Bonaire Boulevard

Apartment 2401

Kissimmee, Florida 34741

Manuel E. Oliver, Assistant Attorney General Department of Legal Affairs

Suite 107, South Tower

400 West Robinson Street Orlando, Florida 32801

Henry M. Solares, Director Division of Real estate Department of Business and

Professional regulation

400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation Northwood Centre

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: 98-002987

Orders for Case No: 98-002987