STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FERNANDO PRUNA, )

)

Petitioner, )

)

vs. ) Case No. 05-4564

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case by video teleconference on April 17, 2006, with connecting sites in Miami and Tallahassee, Florida, before Errol H. Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A. 1020 Verons Street

Kissimmee, Florida 34741

For Respondent: Daniel R. Biggins, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner's application for licensure as a real estate sales associate should be granted.

PRELIMINARY STATEMENT

Fernando Pruna made application for licensure as a real estate sales associate. His application was considered by the Department of Business and Professional, Division of Real Estate (Division of Real Estate), through the Florida Real Estate Commission (Commission) at its regularly scheduled meeting on August 16, 2005. Mr. Pruna was present at that meeting. On October 21, 2005, the Commission filed a Notice of Intent to Deny his application, with a Key for License Denials (Key) attached, citing facts and conclusions of law, which referred to the Key as to the facts and conclusions of law. Mr. Pruna requested a hearing. On December 16, 2005, this matter was referred to the Division of Administrative Hearings.

At hearing, Mr. Pruna testified in his own behalf, presented the testimony of two witnesses and entered one exhibit (Petitioner's Exhibit numbered 1) into evidence. The Division of Real Estate presented no witnesses and entered two exhibits (Respondent's Exhibit numbered 1 and 2) into evidence. A transcript was ordered. At the request of the parties, the time for filing post-hearing submissions was set for ten days

following the filing of the transcript. The Transcript, consisting of one volume, was filed on May 15, 2006.

The parties timely filed their post-hearing submissions on May 24, 2006, which were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. On or about May 31, 2005, Mr. Pruna made application (Application) to the Division of Real Estate for a real estate sales associate license, which was received on June 2, 2005.

2. The Application contains a "Background Information" section, which poses several questions. Question 1 provides in pertinent part:

   Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. . . .

   
   

3. Mr. Pruna responded yes to Question 1. He disclosed that, on or about December 14, 1992, he pled guilty in federal court to seven offenses as follows: conspiracy to import a quantity of marijuana into the United States; engaging in a criminal enterprise; conspiracies to impair, impede, obstruct,

   and defeat the lawful governmental functions of the Internal Revenue Service; transporting United States currency in excess of $10,000 outside the United States; bribery; conspiracy to possess with intent to distribute in excess of one kilogram of cocaine; and failure to appear. As to the bribery offense,

   Mr. Pruna bribed customs officers. Regarding failure to appear, he was afraid, because of the charges and the potential sentence, and fled the country (United States) but later returned after a plea bargain was agreed upon.

4. Mr. Pruna was incarcerated in federal prison for four and one-half to five years. Prior to being incarcerated in the United States, he was imprisoned four years in Argentina. When he fled the United States, he plea-bargained with the United States government and began serving his prison term in the United States after completing his prison term in Argentina. As a result, Mr. Pruna served a total of eight and one-half to nine years in prison.

5. Mr. Pruna was released from federal prison in 1996.

   
   

6. Mr. Pruna has completed all conditions associated with his release from prison. For approximately eight years, he has not been under any supervision and has not committed any crimes.

7. Mr. Pruna was born in Cuba. Prior to his imprisonment in Argentina and the United States, Mr. Pruna was a political prisoner in Cuba, where he was sentenced to death, but the death

   sentence was commuted to 55 years in prison. In 1979, he was released from prison in Cuba after serving 17 years. In 1980, he was allowed to leave Cuba for the United States. After arriving in the United States at 45 years of age, he was unable to find employment and had difficulty adjusting to the United States. He got involved in criminal activity, which led to his arrest in 1987 for the aforementioned crimes.

8. Mr. Pruna takes full responsibility for his crimes.

   
   

9. Presently, Mr. Pruna is 70 years of age. He has been married for approximately six years and has three minor children. Mr. Pruna makes sure that he spends time with his family and teaches his children, among other things, to be good citizens and obey the laws.

10. Mr. Pruna presently manages two businesses--a used automobile dealership and a business nationally distributing electric motor scooters. He has been involved in the used automobile dealership since 1999 and in the distribution business for approximately nine years. In both businesses, he is entrusted with the funds of others.

11. Mr. Pruna has an earnest desire to be rehabilitated and has shown that he is rehabilitated.

12. Mr. Pruna's wife is a real estate broker and has been since 1995. If his license is granted, he would be employed with his wife.

13. The witnesses, who testified on Mr. Pruna's behalf and who are both real estate licensees, testified that he was honest, trustworthy, and of good moral character. His letters of reference indicated the same.

14. Further, the witnesses testified that the public would not likely be endangered if Mr. Pruna was granted a real estate sales associate license.

15. Moreover, the witnesses admitted that the public must have confidence in a real estate professional and that a real estate professional must be honest and accurate and exercise

    good judgment.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2006).

17. Section 475.17, Florida Statutes (2005), provides in pertinent part:

    1. (a) 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 . . . 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 [Florida Real Estate 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.

       
       

18. Mr. Pruna contends that "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient that the interest of the public and investors will not likely be endangered" by approving his Application for a real estate sales associate license. However, the Division of Real Estate contends to the contrary.

19. The general rule is that "the burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal." Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981). Mr. Pruna has the burden of proof by establishing through a preponderance of evidence that he has been rehabilitated and that he should be granted a real estate

    sales associate license. Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern

    and Company, 670 So. 2d 932 (Fla. 1996); Antel v. Department of Professional Regulation, Florida Real Estate Commission, 522 So. 2d 1056, 1058 (Fla. 5th DCA 1988); J. W. C. Company, Inc.,

    supra.; § 120.57(1)(j), Fla. Stat. (2006).

    
    

20. As to lapse of time, a case that provides guidance is Antel, supra. Antel made application for a real estate license in 1986 and, prior to making application, she had only been released from prison (convicted of manslaughter) for three months and one year (1987) at the time of hearing, but her parole release date was in 1993. The statutory provisions involved were Sections 475.17(1)(a) and 475.25(1)(f), Florida Statutes (1985). The Commission denied Antel's licensure because she had been convicted of a crime involving moral turpitude and because insufficient evidence was presented at hearing of her rehabilitation. The court upheld the denial of her application, holding that the conviction of manslaughter constituted a crime involving moral turpitude; and that, because of the short period of time since her release and the scant record at hearing, including her work record associated with real estate after prison, Antel had failed to establish her rehabilitation and right to be licensed. Furthermore, the court

    held that Antel's rehabilitation need not wait until she completed her parole.

21. In the instant case, at the time of hearing, Mr. Pruna had been released from prison for approximately ten years, and he had been released from all conditions of parole for approximately eight years. Based on Antel, supra, the period of time, since his release from prison, is not short but is sufficient for rehabilitation. Turning to Mr. Pruna's conduct after prison, for several years, he has managed two businesses, a used car business and a national distribution business of electric motor scooters--for approximately seven years and approximately nine years, respectively--and has been entrusted with the funds of others during those management-years. The record presented at hearing in the instant case is not scant, as in Antel, supra, but is sufficient. Mr. Pruna has demonstrated rehabilitation.

22. The evidence demonstrates that, since being released from prison, for approximately nine years, Mr. Pruno has shown good conduct and reputation.

23. Consequently, the evidence demonstrates that the interest of the public and investors will not likely be endangered by approving his application for licensure as a real estate sales associate.

24. Further, the Division of Real Estate contends that Mr. Pruna's denial can be based upon Section 475.25(1)(f), Florida Statutes (2005). Section 475.25(1)(f), Florida Statutes (2005), provides the grounds upon which an application for licensure can be denied and provides in pertinent part:

    1. The commission [Florida Real Estate Commission] may deny an application for licensure, . . . if it finds that the licensee, registrant, permittee, or applicant:

       
       

       * * *

       
       

       (f) Has 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. The record of a conviction certified or authenticated in such form as to be admissible in evidence under the laws of the state shall be admissible as prima facie evidence of such guilt.

       
       

25. Regarding the effect of Section 475.25(1)(f), Florida Statutes (2005), on Section 475.17(1)(a), Florida Statutes (2005), a case providing guidance is Aquino v. Department of

    Professional Regulation, 430 So. 2d 598 (Fla. 4th DCA 1983). Aquino made application for a real estate saleman's license. The Board of Real Estate denied the license based on Section 475.25, Florida Statutes (1981), ignoring the evidence presented in the evidentiary hearing conducted pursuant to Section

    475.17(1), Florida Statutes (1981).1 The court, citing State ex re. Corbett v. Churchwell, 215 So. 2d 302, 304 (Fla. 1968), held that the provisions of Section 475.17(1), Florida Statutes (1981), cannot be ignored; that Section 475.25, Florida Statutes (1981), cannot be used to bar an applicant forever from obtaining a license but that the applicant must be provided an evidentiary hearing to show rehabilitation pursuant to Section 475.17(1), Florida Statutes (1981).

26. The undersigned is persuaded that, even though Section 475.25, Florida Statutes (2005), provides grounds of moral turpitude or fraudulent or dishonest dealing for which a license may be denied, an applicant must be provided an evidentiary hearing to show that the applicant has been rehabilitated; and, if the applicant shows rehabilitation, the license cannot be denied based upon the applicant having committed a crime involving moral turpitude or fraudulent or dishonest dealing. In the instant case, Mr. Pruno demonstrated that he has been rehabilitated and that the interest of the public and investors will not likely be endangered by approving his application for licensure as a real estate sales associate.

27. Further, if the Division of Real Estate still has concerns, it may impose additional requirements for licensure, as a condition precedent for licensure--Section 475.17(2), Florida Statutes (2006)--and post-licensure education

requirements in order to maintain a valid sales associate's license--Section 475.17(3), Florida Statutes (2006).

RECOMMENDATION

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

RECOMMENDED that the Department of Business and Professional, Division of Real Estate enter a final order approving the application of Fernando Pruna for a licensure as a real estate sales associate.

DONE AND ENTERED this 7th day of June, 2006, in Tallahassee, Leon County, Florida.

S

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 7th day of June, 2006.

ENDNOTE

1/ The denial of a license involving moral turpitude or fraudulent or dishonest dealing is provided for in Section

475.25(1)(f), Florida Statutes (1981) and (2005). The showing of rehabilitation is provided for in Section 475.17(1), Florida Statutes (1981) and (2005).

COPIES FURNISHED:

Daniel Villazon, Esquire Daniel Villazon, P.A.

1020 Verons Street

Kissimmee, Florida 34741

Daniel R. Biggins, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Josefina Tamayo, General Counsel Department of Business

and Professional Regulation Northwood Centre

1940 Monroe Street

Tallahassee, Florida 32399-0792

Michael E. Murphy, Director Division of Real Estate

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

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: 05-004564

Orders for Case No: 05-004564