STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL ORIA, )

)

Petitioner, )

)

vs. ) Case No. 05-1225

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on May 12, 2005, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida, before Stuart M. Lerner, a duly- designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

419 Vine Street Kissimmee, Florida 34741

For Respondent: Barbara R. Edwards, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's November 23, 2004, Notice of Denial.

PRELIMINARY STATEMENT

On November 23, 2004, through the issuance of a Notice Denial, the Florida Real Estate Commission (Commission) advised Petitioner that it had preliminarily decided to deny Petitioner's application for licensure as a real estate sales associate based on the following:

The Florida Real Estate Commission has determined that the Applicant has been adjudicated guilty of crimes relating to the activities of a licensed broker or sales associate, and crimes of moral turpitude or fraudulent or dishonest dealing.

Specifically it has found that the applicant, Manuel Oria, has been convicted of or found guilty of, or entered a plea of nolo contendere to:

1. Drug Importation.

The Commission further advised Petitioner in its Notice of Denial of his right to "request a hearing on the charges." By letter dated December 6, 2004, Petitioner, through counsel, "dispute[d] that he [was] not qualified to be a real estate licensee" and "petition[ed] for a formal hearing" on the matter.

On April 4, 2005, the case was referred to the DOAH for the "assign[ment of] an administrative law judge for the purpose of hearing the disputed issues of fact arising from the [Commission's] Notice of Denial of Petitioner's application for licensure."

As noted above, the hearing was held on May 12, 2005. Four witnesses testified at the hearing: Petitioner, Amparo Tojeira, Ana Hidalgo, and Pedro Casal. In addition, two exhibits (Petitioner's Exhibit 1 and Respondent's Exhibit 1) were offered and received into evidence.

At the close of the taking of evidence, the undersigned established a deadline (21 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

The Transcript of the hearing (consisting of one volume) was filed with DOAH on May 25, 2005.

Petitioner and Respondent filed their Proposed Recommended Orders on June 14, 2005.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. Petitioner is a 52-year-old man who resides in Miami- Dade County, Florida, with his wife of several months,

   Ana Hidalgo, her children, and his youngest child from a previous marriage.

2. As a younger man, Petitioner was a licensed real estate broker. In the 1980's, however, he decided not to renew his license because, due to "lack of sales," he "wasn't really being active." At no time during the period of his licensure was he ever accused of any wrongdoing.

3. After his real estate broker's license expired, Petitioner went into the real estate development and contracting business full-time.

4. The business did not do well and, as a result, Petitioner found it difficult to adequately provide for himself, his wife, and children.

5. Too proud to accept the financial assistance family members offered, Petitioner, instead, resorted to criminal activity to help ease his financial problems. Specifically, for a fee, he acted as an "intermediary" and helped "put . . . together" a cocaine supplier in Columbia (South America) with a cocaine distributor in Florida. This occurred approximately 17 years ago, in 1988. Other than his involvement in this drug smuggling scheme, Petitioner has been a law-abiding citizen.

6. Petitioner was subsequently arrested for his role in this illicit operation and charged in federal district court with the felony crime of drug importation. In or about 1989,

   after entering a guilty plea, he was adjudicated guilty of the crime and sentenced to federal prison.

7. Petitioner cooperated with the government and, consequently, had his sentence reduced.

8. Petitioner served approximately 11 years in prison, until he was released on parole on September 28, 2000. He was a model prisoner.

9. Since his release from prison, Petitioner has been employed as a car salesman by Lehman Auto World. Throughout the period of his employment, he has been a reliable, dedicated, hard-working and trusted employee, who has developed a reputation for honesty and fair dealing.

10. As part of his job duties, Petitioner sometimes handles (in a fiduciary capacity) large sums of money. He has always discharged this responsibility in an honest and trustworthy manner.

11. Petitioner is still on parole and under the supervision of a United States probation officer. Unless the sentencing court grants early termination,1 Petitioner's parole will terminate on September 28, 2005.

12. In the almost five years he has been on parole, Petitioner has conducted himself in an exemplary manner.

13. Petitioner's prison experience has transformed him into a more mature, responsible, and insightful person, who is repentant and remorseful about his crime.

14. He understands all too well what his ill-advised decision, 17 years ago, to engage in criminal activity has cost him and his family, particularly his children, who did not have their father around for those 11 years that Petitioner was incarcerated.

15. Petitioner is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his family. He has "learned [his] lesson." He is now a firm believer in old adage "crime does not pay." Given the price he has paid for his one criminal indiscretion, he has no intention of ever again letting his good judgment be overwhelmed by the lure of making easy money from criminal activity. He recognizes that to succumb to such temptation would be contrary not just to society's best interests but his as well, and that, if he ever encounters financial problems, he would be far better served "rely[ing] on [the help of] friends [and] family" than resorting to crime, as he did 17 years ago.

16. In short, Petitioner has been rehabilitated, and it appears that the interest of the public and investors will not likely be endangered if he is granted the license he seeks. He now seems to be firmly rooted on the right side of the law.

    CONCLUSIONS OF LAW

    
    

17. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.

18. Petitioner has applied to become licensed as a real estate sales associate in Florida.

19. Section 475.17, Florida Statutes, sets forth the "qualifications for [such] licensure." Subsection (1)(a) of the statute provides as follows:

    An applicant for licensure who is a natural person must be at least 18 years of age; hold a high school diploma or its equivalent; 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 sales associate's license must be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or the applicant's registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, because of any conduct or practices which would have warranted a like result under this chapter, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for revoking or suspending her or his license under this chapter had the applicant then

    been registered, the applicant shall be deemed not to be qualified unless, because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration. The commission may adopt rules requiring an applicant for licensure to provide written information to the commission regarding the applicant's good character.

    
    

20. Furthermore, Section 475.25(1)(f), Florida Statutes, provides that an application for licensure as a real estate sales associate may be denied if the applicant "[h]as been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a licensed broker or sales associate, or involves moral turpitude or fraudulent or dishonest dealing."

21. Relying on Section 425.25(1)(f), Florida Statutes, the Commission preliminarily denied Petitioner's application for licensure based upon his having "been convicted of or found guilty of, or entered a plea of nolo contendere to: Drug Importation."

22. Petitioner requested (and was granted) a hearing conducted in accordance with Sections 120.569 and 120.57(1), Florida Statutes, to challenge this preliminary determination.

23. The evidence adduced at that hearing indisputably reveals (and Petitioner freely admits) that in 1989 he was convicted, in federal district court, of participating in "[d]rug [i]mportation" during the previous year.

24. "Drug [i]mportation" is a crime "which . . . involves moral turpitude," within the meaning of Section 475.25(1)(f), Florida Statutes. See Milliken v. Department of Business and Professional Regulation, 709 So. 2d 595, 597 (Fla. 5th DCA 1998)("Milliken also argues that possession of cocaine with intent to distribute is not a crime which violates section 475.25(1)(f) because it does not involve moral turpitude or fraudulent or dishonest dealing. That section provides that a real estate license may be suspended or revoked if a licensee has been convicted of a crime 'which directly relates to activities of a licensed broker or salesperson, or involves moral turpitude or fraudulent or dishonest dealing.' Not every crime provides a basis for suspension of a real estate

    license. . . . In this case, Milliken did more than merely possess a small amount of illegal drugs. He was convicted of possessing cocaine with the intent to sell. Under contemporary community standards, the evil of narcotics trafficking is well known and accepted. We have no problem with concluding it is a crime involving moral turpitude."); see also Matter of Roberson,

    429 A.2d 530 (D.C. 1981)("This court has previously held that

    the crime of conspiracy to possess a controlled substance, with intent to distribute, is one inherently involving moral turpitude,"); and State v. Hennings, 475 P.2d 926, 930 (Wash.

    1970)("Without doubt, by contemporary community standards possession and sale of narcotics, unless authorized by law, is a crime which by its very nature involves 'moral turpitude.'".).

25. Accordingly, in order to avoid a finding that, in light of his conviction, he does not meet the qualifications for licensure as a real estate sales associate set forth in Section 475.17(1)(a), Florida Statutes, and therefore his application for such licensure should be denied pursuant Section 475.25(1)(f), Florida Statutes, it was Petitioner's burden to establish at hearing, by a preponderance of the evidence, that, "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, . . . the interest of the public and investors will not likely be endangered" by the granting of his application. See Department of Banking and Finance, Division of Securities and Investor

    Protection v. Osborne Stern and Company, 670 So. 2d 930 (Fla. 1996)("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."); and Florida Department of Health and

    Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is on the

    party asserting the affirmative on an issue before an administrative tribunal. . . . 'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is, [a] preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'"); and Section 120.57(1)(j), Florida Statutes ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

26. Petitioner met his burden of proof. He showed that since his criminal transgression 17 years ago, he has conducted himself, both in prison and in the community (while on parole), in such a commendable manner, and he has so changed his approach to life, that it does not appear likely that his being granted a real estate sales associate license will endanger the interest of the public and investors.

27. That Petitioner, in 1988, engaged in, and, a year later, was convicted of, "[d]rug [i]mportation," therefore, does not provide a basis to deny him licensure as a real estate sales associate.2 See Aquino v. Department of Professional Regulation, 430 So. 2d 598 (Fla. 4th DCA 1983).

RECOMMENDATION

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

RECOMMENDED that the Florida Real Estate Commission issue a Final Order granting Petitioner's application for licensure as a real estate sales associate.

DONE AND ENTERED this 24th day of June, 2005, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 24th day of June, 2005.

ENDNOTES

1 Petitioner's probation officer has written Petitioner's attorney a letter indicating that, as of May 10, 2005, her (the probation officer's) "office [was] in the process of preparing a request for early termination of Petitioner's parole."

2 In its Proposed Recommended Order, Respondent makes the following argument in support of its position that Petitioner should be denied the licensure he is seeking:

[Section 112.011(1)(b), [Florida Statutes] provides, in pertinent part, that "a person whose civil rights have been restored shall not be disqualified to practice . . .

any . . . profession . . . for which a license . . . is required to be issued by the state, [or] any of its agencies . . . solely because of a prior conviction for a crime."

Thus, the converse is not precluded and a person whose civil rights have not been restored may be disqualified to practice any profession for which a license is required to be issued by the state or any of its agencies solely because of prior conviction for a crime. . . .

Mr. Oria is not eligible to seek restoration of his civil rights while on parole. . .

The answer to the third question is "Yes, a convicted felon whose civil rights have not been restored by the Clemency Board may be denied licensure pursuant to section 112.011(b), F.S.

The undersigned disagrees with Respondent to the extent Respondent is contending that the Commission has the authority to deny, "solely because of a prior conviction for a crime," the licensure application of a convicted felon whose civil rights have not been restored, even if there has been a showing that, "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the [C]ommission that the interest of the public and investors will not likely be endangered by the granting of [the license]." Such an interpretation is not mandated by the plain meaning of the words used by the Legislature in Section 112.011(1)(b), Florida Statutes, and it flies in the face of the clear and unambiguous language of Section 475.17(1)(a), Florida Statutes, which specifically addresses the qualifications for licensure as a real estate sales associate and must be given effect. See McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994)("[A] specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.")(citations omitted); Forsythe v. Longboat Key Beach

Erosion Control District, 604 So. 2d 452, 455 (Fla. 1992)("Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another."); Hillsborough County Governmental Employees Association, Inc. v. Hillsborough County Aviation Authority, 522 So. 2d 358, 361-62 (Fla. 1988)("While section 447.309(3) clearly applies, it is unclear whether section 447.601 applies to this case. The language of that statute does not clarify whether it was intended to control conflicts between collective bargaining agreements and civil service rules. The legislative history of this statute is equally ambiguous on the question of whether it should apply to this particular type of conflict. Accordingly, we must reject the argument that section 447.601 controls this conflict."); and Osorio v. Board of Professional Surveyors and Mappers, 898 So. 2d 188, 190 (Fla. 5th DCA 2005)("When the language of the statute under interpretation is unambiguous and has a plain and ordinary meaning, the plain meaning should be given effect.").

COPIES FURNISHED:

Daniel Villazon, Esquire

419 Vine Street Kissimmee, Florida 34741

Barbara R. Edwards, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Juana Carstarphen Watkins, Acting Director Division of Real Estate

400 West Robinson Street, Suite 802, North Orlando, Florida 32801

Leon Biegalski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-2202

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: 05-001225

Orders for Case No: 05-001225