STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RAFAEL OROPESA, )

)

Petitioner, )

)

vs. ) Case No. 06-0258

) FLORIDA REAL ESTATE APPRAISAL ) BOARD, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on April 10, 2006, via videoteleconference at sites in Miami and Tallahassee, Florida, before Florence Snyder Rivas, a duly- designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John R. Sutton, Esquire

Sutton & Associates

7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143

For Respondent: Brian J. Stabley, Esquire

Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner Rafael Oropesa is entitled to licensure as a Florida registered trainee real estate appraiser.

PRELIMINARY STATEMENT

By Notice of Intent to Deny dated January 6, 2006, the Respondent Florida Real Estate Appraisal Board (Respondent) advised Petitioner (Petitioner) that his application for licensure as a Florida registered trainee real estate appraiser (trainee appraiser) was denied. Petitioner timely filed a Petition for Administrative Relief (Petition) invoking his right to an administrative hearing to contest the denial.

The identity of witnesses, exhibits, and attendant rulings are contained in the one-volume transcript filed May 17, 2006. The parties timely submitted proposed recommended orders which have been carefully 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. Petitioner applied for licensure as a trainee appraiser. Respondent, an agency of state government, is charged with the duty of licensing and regulating Florida real estate brokers, sales associates, schools and appraisers.

   With particular relevance to the instant case, it is Respondent's responsibility to investigate the qualifications of individuals who apply for licensure as trainee appraisers, and to issue licenses to applicants who meet the licensure

   criteria set forth in relevant provisions of the Florida Statutes. Respondent determined that Petitioner did not meet licensure criteria and denied his application.

2. Respondent requires applicants to submit, in writing, information relevant to its investigation of the qualifications of individuals who apply for licensure as trainee appraisers. Respondent prescribes the form and detail required of applicants in submitting such information. More specifically, applicants are provided application forms approved by Respondent (application forms). The application forms include detailed, specific, and unambiguous questions and instructions. Applicants are required to "attest" that they read the questions asked in the application and answered the questions "completely and truthfully to the best of [applicant's] knowledge." Once a completed application is submitted, Respondent's staff commences to verify information provided and attested to by the applicant, and to make a recommendation regarding the applicant's qualifications for licensure. Respondent reviews staff recommendations and makes a determination as to whether the applicant meets licensure criteria; based upon its determination, Respondent grants or denies licensure.

3. Upon review and investigation of the information

   
   

   provided and attested to by Petitioner, staff determined that

   Petitioner failed to meet licensure criteria and recommended that his application for licensure be denied. The staff recommendation was based upon Petitioner's criminal record, which included three felony convictions for crimes involving moral turpitude, as well as Petitioner's failure to disclose two of the convictions in such form and detail as Respondent prescribes. At a meeting held October 3, 2005, Respondent considered Petitioner's application and afforded Petitioner a full opportunity to present whatever information he wished Respondent to consider. Following discussion of Petitioner's criminal record, and his failure to disclose two of the convictions, Respondent concluded that Petitioner had not demonstrated that he met licensure criteria.

4. The evidence established and Petitioner admits that on or about February 20, 1991, the Circuit Court of the 13th Judicial Circuit, in and for Hillsborough County, Florida (the Court) adjudicated Petitioner guilty of three felonies he committed on or about April 19, 1990: attempted arson; armed burglary of a structure; and making, possessing, throwing, placing, projecting, or discharging a destructive device. Petitioner broke into the referenced structure, a building which housed a bar owned by a business competitor, for the purpose of destroying the structure and its contents. Following Petitioner's conviction, the Court pronounced

   sentence of 30 years in prison, of which 15 were suspended at the time of sentencing. Petitioner served two years in prison, at which time he was released and placed on probation.

   Petitioner was released from probation on or about October 27, 2000.

5. On or about August 2, 2005, Petitioner filed his application forms. The application forms include "background information" questions, one of which asks if the applicant has ever been convicted of crime(s) other than minor traffic offenses. Applicants who answer this question in the affirmative are unambiguously instructed to provide "full details of any criminal conviction . . . including the nature of any charges, dates, outcomes, sentences, and/or conditions imposed; the dates, name and location of the court and/or jurisdiction in which any proceedings were held or are pending. . . ." (full details). Applicants are directed to supply full details on a separate form known as DBPR 0050-1--- Explanatory Information for Background Questions (form 0050- 1). Form 0050-1 contains space for applicants to list the crimes of which they have been convicted and to provide the required full details with respect to each offense.

6. Having answered the background question regarding

   
   

   criminal conviction(s) in the affirmative, Petitioner filled out form 0050-1. On it, he disclosed only his conviction for

   attempted arson; he failed to reveal his contemporaneous convictions on the charges of armed burglary of a structure and making, possessing, throwing, placing, projecting, or discharging a destructive device.

7. Petitioner does not claim that he did not understand the form and detail Respondent had prescribed with reference to the disclosures required to be made on the application forms in general and form 0050-1 in particular. Rather, he attempted to justify his failure to disclose, claiming under oath that he had attached "court documents" (documents) to his application; that the documents he furnished fully disclosed all required information; and that the documents had been lost by Respondent. Assuming arguendo that Respondent has discretion to grant licensure to an applicant who chooses to submit documents in lieu of submitting an application in the form and detail prescribed by Respondent, this Petitioner is not a candidate for the exercise of such discretion. The

   fact-finder had the opportunity to closely observe Petitioner's demeanor as he testified that he had attached documents to his application, and that the documents fully disclosed all information required to be disclosed by applicants with criminal backgrounds. On direct and cross- examination with respect to the documents, as well as with respect to matters of lesser significance, Petitioner was

   evasive and on occasion combative. Petitioner's testimony regarding the documents was not corroborated in any way. The fact-finder does not believe that Petitioner attached documents to his application; it follows that Respondent did not lose any documents. There is no persuasive evidence that Petitioner's application was mishandled in any way.

8. Even if the fact-finder credited Petitioner's uncorroborated testimony to the effect that he had furnished full details regarding his criminal history, the crimes themselves are sufficiently egregious to warrant a denial of licensure. Each of the Petitioner's crimes involved moral turpitude. Each related directly to the activities of a trainee appraiser, in that each was calculated to cause the destruction of real and personal property. In this case, the property Petitioner sought to destroy belonged to the owners of a business competitor. Petitioner's crimes victimized not only the owners of the structure, but also their employees, customers, and vendors. Because trainee appraisers have substantial access to the property of sellers and purchasers, a record of crimes against property raises grave concerns as to an applicant's fitness for licensure. Petitioner's crimes reflect depraved indifference to the lives of individuals who may have been in the structure at the time the crimes were committed, as well as to the lives of the firefighters and

   police who would forseeably be called upon to put out the fire and to pursue the individual(s) who committed the crimes.

   Licensure is limited to applicants who demonstrate competence and qualifications to make real estate appraisals with safety to those with whom they may undertake a relationship of trust and confidence. Petitioner's crimes demonstrate that he lacks the requisite trustworthiness, competence, and qualifications for licensure.

9. Petitioner's failure to reveal two of his felony convictions on form 0050-1 furnishes an independent basis upon which licensure should be denied. Form 0050-1 as attested to by Petitioner was an attempt to obtain a license by means of knowingly making a false statement, submitting false information, refusing to provide complete information in response to an application question. Petitioner's form 0050-1 was a knowing fraud, misrepresentation, and concealment with respect to information at the heart of Respondent's discharge of its duty to assure that applicants meet statutory criteria for licensure.

   CONCLUSIONS OF LAW

   
   

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

11. To prevail in this proceeding, Petitioner must prove by a preponderance of the evidence that he meets licensure criteria set forth in relevant provisions of the Florida Statutes. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). Petitioner has failed to meet this burden.

12. Section 475.615, Florida Statutes (2006), addresses qualifications for licensure as a trainee appraiser and provides in relevant part:

    1. Any person desiring to act as a registered trainee appraiser or as a licensed or certified appraiser must make application in… such form and detail as the board shall prescribe. . .

       
       

       * * *

       
       

       (6) All applicants must be competent and qualified to make real estate appraisals with safety to those with whom they may undertake a relationship of trust and confidence and the general public. . . .

       
       

13. Section 475.624, Florida Statutes, provides, in relevant part:

    The [Respondent] may deny an application for registration, licensure, or certification . . . if it finds that the [applicant]:

    
    

    * * *

    
    

    (5) Has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime . .

    . which involves moral turpitude . . .

    
    

    * * *

    
    

    (12) Has obtained or attempted to obtain a registration, license, or certification by means of knowingly making a false statement, submitting false information, refusing to provide complete information in response to an application question, or engaging in fraud, misrepresentation, or concealment.

    
    

14. Petitioner committed three felonies, each of which involves moral turpitude within the meaning of Section 475.624(5), Florida Statutes (2006). The crimes he committed are directly related to the activities of trainee appraisers in that they were intended to destroy real and personal property. Petitioner's crimes violated not only the criminal laws of Florida, but also the basic precepts of a civilized society. Section 475.615(6) provides that licensure may be granted only upon a showing by the applicant that he is qualified to make real estate appraisals with safety to those with whom he may undertake a relationship of trust and confidence and the general public. Considered individually or taken together, Petitioner's crimes demonstrate he is not so qualified.

15. Even if Petitioner's crimes did not involve moral turpitude, he would yet not be entitled to licensure inasmuch as he attempted to obtain licensure by means of knowingly making a false statement, submitting false information, and

refusing to provide complete information with reference to his criminal history. Deliberate dishonesty with respect to any disclosure prescribed by Respondent on the application forms, standing alone, would warrant denial of licensure. The response provided by Petitioner on form 0050-1 was a deliberate attempt to obtain licensure by means of knowingly misrepresenting and concealing information which he was required to provide. Petitioner knowingly engaged in fraud, misrepresentation and concealment in completing and attesting to the accuracy of all information he provided on form 0050-1 in contravention of Section 475.624(12), Florida Statutes (2006).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying Petitioner's application for licensure as a Florida registered trainee real estate appraiser.

DONE AND ENTERED this 13th day of July, 2006, in Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

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 13th day of July, 2006.

COPIES FURNISHED:

Brian J. Stabley, Esquire Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

John R. Sutton, Esquire

John R. Sutton & Associates, P.A. 7721 Southwest 62nd Avenue, Suite 101 South Miami, Florida 33143

Frank Gregoire, Chairman Real Estate Appraisal Board Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N Orlando, Florida 32802-1900

Josefina Tamayo, 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: 06-000258

Orders for Case No: 06-000258