STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM PETER MOUFLOUZE, )

)

Petitioner, )

)

vs. )

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

)

Respondent. )

Case No. 06-3038

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings, on October 3, 2006, in Tallahassee, Florida.

APPEARANCES

For Petitioner: William Peter Mouflouze, pro se

Bill Mouflouze Real Estate Post Office Box 6541

Portsmouth, New Hampshire 03802-6541

For Respondent: Thomas Barnhart, Esquire

Claudel Pressa, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

The issue is whether Respondent should grant Petitioner a real estate broker license.

PRELIMINARY STATEMENT

Petitioner William Peter Mouflouze (Mr. Mouflouze), applied to the Department of Business and Professional Regulation, Florida Real Estate Commission (Commission), for a real estate broker license, in an application that was filed on December 30, 2005. The Commission issued a Notice of Intent to Deny, which was filed on May 19, 2006.

The Notice of Intent to Deny was replete with allegations that were unrelated to any transgressions committed by

Mr. Mouflouze. However, Section "D" of the "Key for License Denial," did allege, pursuant to Section 475.181, Florida Statutes, that he had been denied licensure because he had violated the real estate laws of another state, by engaging in conduct which would constitute a violation in Florida, if done in Florida. Specifically, it noted that Mr. Mouflouze's New Hampshire broker's license had been revoked. Despite the incorrect and confusing allegations in the Notice of Intent to Deny, Mr. Mouflouze understood why the Commission intended to deny him a license.

In a letter dated June 20, 2006, Mr. Mouflouze asserted, apparently correctly, that he had not committed the offenses alleged except for the allegation that his license in another state had been revoked. He noted in the letter that his broker's license in New Hampshire had never been revoked, but

stated that his broker's license in Maine had been revoked. He demanded a hearing.

The case was referred to the Division of Administrative Hearings in a document filed August 18, 2006. The case was set for hearing in Tallahassee, Florida, on October 3, 2006, and heard as scheduled. Mr. Mouflouze testified and offered Exhibits Numbered 1 through 9. Exhibits Numbered 1, 3, and 4, were admitted. Exhibits Numbered 2, and 5-9 were admitted to supplement other evidence, in accordance with Section 120.57(1)(c), Florida Statutes.

The Commission offered Exhibit Numbered 1, and it was admitted.

No transcript was ordered. Respondent timely filed its Proposed Recommended Order on October 12, 2006. Petitioner did not file a proposed recommended order.

References to statutes are to Florida Statutes (2005) unless otherwise noted.

FINDINGS OF FACT

1. Mr. Mouflouze has held real estate licenses in New Hampshire and Maine for about 28 years. He lives in Portsmouth, New Hampshire, which abuts the Maine border. It was because he lives in close proximity to Maine, that he maintained a license there, also.

2. The Commission, pursuant to Chapter 475, regulates real estate brokers and sales associates. The Commission accomplishes this regulation through the Division of Real Estate of the Department of Business and Professional Regulation.

3. Mr. Mouflouze currently holds a broker's and salesperson's license in New Hampshire. He has not experienced any disciplinary action in that state. These licenses have an expiration date of April 1, 2008.

4. From 1982 until 2004, Mr. Mouflouze held a designated broker's license in Maine. Prior to February 19, 2004,

   Mr. Mouflouze failed to complete the required hours of continuing education in Maine, according to the Maine Real Estate Commission (Maine Commission). He disagreed with this conclusion. He attended a hearing before the Maine Commission and after the hearing the Maine Commission ordered him to pay a fine of $900 and to complete six hours of continuing education.

5. Mr. Mouflouze refused to pay the fine or otherwise obey the order. As a result, the Maine Commission had another hearing in his case on August 19, 2004, based on his failure to comply with its order. As a result of that hearing, his designated broker license was revoked effective the date of the hearing.

6. As of the date of the hearing in this case, his license in Maine had not been reinstated.

7. Mr. Mouflouze is a person who is regarded as a highly qualified and ethical real estate broker. He is reputed to be honest and hard-working.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.

9. The burden of proof 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 (Fla. 1st DCA 1981). Accordingly, in order to prevail, Mr. Mouflouze had to establish facts proving by a preponderance of the evidence that he was entitled to the license sought. See § 120.57(1)(j), Fla. Stat. He failed to accomplish this.

10. The Commission provided reasonable notice to Mr. Mouflouze that it was the Commission's intent to deny licensure because he had violated the real estate laws of

    another state, by engaging in conduct which would constitute a violation of the real estate laws of Florida. See § 120.60(5), Fla. Stat.

11. The criteria for licensure as a real estate broker is set forth in Section 475.181, Florida Statutes, as follows:

    475.181. Licensure

    
    

    1. The department shall license any applicant whom the commission certifies, pursuant to subsection (2), to be qualified to practice as a broker or sales associate.

       
       

    2. The commission shall certify for licensure any applicant who satisfies the requirements of ss. 475.17, 475.175, and

       475.180. The commission may refuse to certify any applicant who has violated any of the provisions of s. 475.42 or who is subject to discipline under s. 475.25. The application shall expire 2 years after the date received if the applicant does not pass the appropriate examination. Additionally, if an applicant does not pass the licensing examination within 2 years after the successful course completion date, the applicant's successful course completion is invalid for licensure.

       
       

    3. The department may not issue a license to any applicant who is under investigation in any other state, territory, or jurisdiction of the United States or any foreign national jurisdiction for any act that would constitute a violation of this part or chapter 455 until such time as the investigation is complete and disciplinary proceedings have been terminated.

    
    

12. Subsections 475.25(1)(e) and (s), Florida Statutes, provide as follows:

    § 475.25. Discipline

    
    

    1. The commission may deny an application for licensure, registration, or permit, or renewal thereof; may place a licensee, registrant, or permittee on probation; may suspend a license, registration, or permit for a period not exceeding 10 years; may revoke a license, registration, or permit;

       may impose an administrative fine not to exceed $ 5,000 for each count or separate offense; and may issue a reprimand, and any or all of the foregoing, if it finds that the licensee, registrant, permittee, or applicant:

       
       

       * * *

       
       

       (e) Has violated any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455.

       
       

       (s) Has had a registration suspended, revoked, or otherwise acted against in any jurisdiction. The record of the disciplinary action 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 disciplinary action.

       
       

       * * *

       
       

13. Because Section 475.25(1)(s), Florida Statutes, provides that the Commission may deny an application submitted by someone who has had a license revoked in another jurisdiction, Mr. Mouflouze's license was revoked in Maine, the Commission may properly deny a license to him.

14. Section 475.25(1)(e), Florida Statutes, provides that a violation of, ". . . any of the provisions of this chapter or any lawful order or rule made or issued under the provisions of this chapter or chapter 455," warrants discipline. Florida Administrative Code Rule 61J2-24.001(3)(f), provides that the

    failure to comply with an order pursuant to Section 475.25(1)(e), Florida Statutes, may result in revocation of a license.

15. The failure to comply with an order of the Maine Commission, is similar to a violation of Section 475.25(1)(e), Florida Statutes.

16. Section 475.17(1)(a), Florida Statutes, sets forth the qualifications for licensure. It states that having a license revoked in another state for conduct that might warrant a like result in Florida may be a disqualifying event, and in this case, it is.

17. Mr. Mouflouze failed to prove by a preponderance of the evidence that he should be licensed in the State of Florida.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Florida Real Estate Commission deny

William Peter Mouflouze's application for licensure as a real estate broker.

DONE AND ENTERED this 24th day of October, 2006, in Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

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 October, 2006.

COPIES FURNISHED:

Thomas Barnhart, Esquire Claudel Pressa, Esquire

Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050

William Peter Mouflouze Bill Mouflouze Real Estate Post Office Box 6541

Portsmouth, New Hampshire 03802-6541

Nancy B. Hogan, Chairman Real Estate Commission Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N 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: 06-003038

Orders for Case No: 06-003038