STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA L. SOCARRAS, )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, ) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 06-3037

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on October 25, 2006, by video teleconference with sites in Miami and in Tallahassee, Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A. 1020 Verona Street

Kissimmee, Florida 34741

For Respondent: Claudel Pressa, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

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

PRELIMINARY STATEMENT

By Notice of Intent to Deny issued July 21, 2006, the Florida Real Estate Commission denied Petitioner's application for licensure as a real estate sales associate, and Petitioner requested an administrative hearing regarding that preliminary determination. This cause was transferred to the Division of Administrative Hearings on August 18, 2006, to conduct the evidentiary proceeding.

Petitioner testified on her own behalf and presented the testimony of Juan Carlos Villa, Julio Sierra, and Laura Tirse. The Department of Business and Professional Regulation presented no witnesses. Joint Exhibit numbered 1 and Petitioner's Composite Exhibit numbered 1 were admitted in evidence. The Department's request for official recognition of Section 475.17, Florida Statutes, was granted.

Although no transcript of the final hearing was filed, both parties submitted proposed recommended orders. Those documents have been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Martha L. Socarras is a Hispanic female born in 1970.

2. In March 2006 Petitioner filed with the Department of Business and Professional Regulation, Division of Real Estate, an application for licensure as a real estate sales associate.

   On that application, she answered in the affirmative question numbered 1 in the Background Information portion of the application. That question asked if she had ever been convicted of a crime, found guilty, or entered a plea of guilty.

3. In support of her application she submitted a certified copy of the Judgment in a Criminal Case entered by the United States District Court for the Southern District of Florida on December 8, 1999. That Judgment recites that Petitioner pled guilty to one count of conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks. Counts 2 through 27 were dismissed by the prosecution. Petitioner was sentenced to two years in prison followed by three years of supervised probation.

4. The Judgment also recites that the actual monetary loss was $700,000 and assessed the total amount of restitution to be paid by Petitioner as $1,114,676.04. The Judgment then provides that the amount of restitution was reduced to partial restitution in the amount of $500,000 due to Petitioner's inability to pay the full amount. The Judgment further provides that restitution to the Palmetto Government Benefits Administration was to be paid through the federal court.

5. Petitioner was released from the Federal Correctional Institution in Danbury, Connecticut, on January 4, 2002, but was detained by the United States Immigration & Naturalization

   Service. At the time of her release, she still owed $499,500 in restitution.

6. In March 2002 an Immigration Judge granted Petitioner permanent resident status at the conclusion of the immigration removal proceeding.

7. On January 3, 2005, Petitioner completed her probation and was discharged from supervision.

8. Petitioner filed her application for licensure only a year later.

9. Petitioner also provided to the Department of Business and Professional Regulation an unexecuted consent agreement between herself and the federal government providing that she would pay the $500,000 in restitution at the rate of $200 per month commencing February 1, 2005.

10. Petitioner attributes her criminal conduct to ignorance of the Medicare laws. She was employed for three years by her brother's medical equipment business. Although Medicare performed several audits of that business during Petitioner's employment there, the last audit revealed that Petitioner and her brother were paying "commissions" to persons for referring patients to her brother's business. Petitioner asserts that she did not know that what they were doing was illegal.

11. At the final hearing Petitioner testified that she had offered to the federal government property she owns which is sufficient in value to pay the required restitution but did not know if the federal government would accept her offer.

12. The several letters of recommendation which Petitioner submitted to the Department are from persons who have known her as long as 18 years. None appear to know about her criminal conviction or to have noticed that she was missing for two years. One alleges the author has known Petitioner for five years, which must mean she met Petitioner while Petitioner was in prison.

13. Similarly, the persons who testified on her behalf at the final hearing did not appear to know that she had a conviction or that she was in prison for two years. One witness testified she has known Petitioner for ten years and that she saw Petitioner three or four times a week. Another witness testified both that he has had no business dealings with Petitioner and that he transacts business with her.

14. As evidence of rehabilitation, Petitioner offered evidence that she is a very religious person and active in ministry. However, that aspect of her life appears to have pre- existed her criminal conduct, existed during her criminal conduct, and continues to exist. It, therefore, fails to prove rehabilitation.

15. Petitioner offered no evidence concerning her employment since her release from prison. Her witnesses offered vague testimony indicating she works in the title insurance industry, but no evidence was offered as to her role therein.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.

17. Petitioner bears the burden of proving that she is entitled to licensure. Florida Dept. of Transportation v.

    J.W.C., Co., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Dept. of Health & Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

18. The Commission's decision to deny Petitioner's application for licensure is memorialized on a form which recites which paragraphs of the form apply to Petitioner. The factual allegations upon which the Commission relied relate to her criminal record, recent in time; her conviction of a felony, and her unpersuasive testimony in explanation or mitigation of her criminal conduct.

19. The Commission's decision to deny Petitioner's application was based upon several legal standards. First, Petitioner fails to meet the qualifications for licensure in that she is not honest, truthful, trustworthy, of good

    character, and having a good reputation for fair dealing. See § 475.17(1)(a), Fla. Stat. Petitioner's guilty plea to conspiracy to file false claims against Health and Human

    Services, mail fraud, and paying kickbacks does reveal a lack of honesty, trustworthiness, and good character.

20. Second, the Commission's denial was based upon Petitioner having engaged in conduct which would have been grounds for disciplining her had she been licensed. This allegation includes two provisions: (1) being guilty of fraud, misrepresentation, dishonest dealing, or breach of trust in a business transaction; and (2) being convicted of a crime which directly relates to the activities of a real estate sales associate or which involves moral turpitude or fraudulent or dishonest dealing. See § 475.25(1)(b) and (f), Fla. Stat. Petitioner's guilty plea to conspiracy to file false claims against Health and Human Services, mail fraud, and paying kickbacks clearly falls within both statutory Subsections and would be grounds for suspending or revoking her license had she been licensed.

21. Section 475.17(1)(a), Florida Statutes, provides that an applicant for licensure who is disqualified from licensure due to a lack of good character or due to conduct which would be grounds for suspension or revocation of her license may still be entitled to licensure because of the lapse of time and

    subsequent good conduct and reputation, or other reason deemed sufficient that the interests of the public and investors will not likely be endangered by the granting of a license.

    Petitioner has failed to demonstrate entitlement to licensure pursuant to this provision.

22. Petitioner filed her application for licensure in March 2006, only a year after she completed her prison sentence and supervised probation. One year following a conviction for fraud, false claims, and paying illegal commissions is not a sufficient time period to show that Petitioner would not be a danger to the public if she were licensed as a real estate sales associate.

23. Further, she has not yet fulfilled all the terms of her sentence. She still owes restitution of almost $500,000. Monthly payments of $200 mean that it would take over 200 years for the federal government, i.e., the taxpayers, to be made whole. Petitioner testified that she owns sufficient property to satisfy that obligation and that she has offered that property to the government to fulfill her court-ordered restitution. The fact that she could, according to her testimony, pay off her debt but has not done so is particularly troubling and belies her assertion that she has accepted full responsibility for her past behavior.

24. Her other suggestions of rehabilitation are that she preaches her religion and is employed. She was preaching her religion and was employed before her criminal conduct. Those efforts, therefore, fail to establish rehabilitation.

25. Accordingly, Petitioner has failed to prove that she should be licensed either due to the passage of time or due to subsequent rehabilitation.

RECOMMENDATION

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

RECOMMENDED that a final order be entered denying Petitioner's application for licensure as a real estate sales associate.

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

S

LINDA M. RIGOT

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 of November, 2006.

COPIES FURNISHED:

Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

Daniel Villazon, Esquire Daniel Villazon, P.A.

1020 Verona Street

Kissimmee, Florida 34741

Michael E. Murphy, Director Division of Real Estate

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

Josefina Tamayo, 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: 06-003037

Orders for Case No: 06-003037