vs. ) Case No. 08-1301
Respondent. )
Pursuant to notice, a hearing was conducted in this case on May 8, 2008, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (DOAH).
For Respondent: Michael A. Gross, Esquire
Assistant Attorney General Office of the Attorney General Administrative Law Bureau
Whether Petitioner's application for registration as a trainee real estate appraiser should be denied on the ground set forth in the Florida Real Estate Appraisal Board's Notice of
Intent to Deny.
On or about August 20, 2007, the Florida Real Estate Appraisal Board (Board) furnished Petitioner with a Notice of Intent to Deny, advising him that it had preliminarily decided to deny his application for registration as a trainee real estate appraiser based on the following:
The Board further advised Petitioner in its Notice of Intent to Deny of his right to "seek review" of this decision and "request a hearing" on the matter.
On September 10, 2007, Petitioner, through counsel, filed a Petition for Formal Hearing, requesting that "the matter be referred to the Division of Administrative Hearings to assign an Administrative Law Judge to conduct a formal hearing."
On March 14, 2008, the case was referred to DOAH in accordance with Petitioner's request.
As noted above, the hearing was held on May 8, 2008. Three witnesses testified at the hearing: Patsy Stecco, Gaston Gosselin, and Petitioner. In addition, two exhibits (Respondent's Exhibit 1, a certified copy of Petitioner's application file, and Respondent's Exhibit 2, Petitioner's Answers to Respondent's First Set of Interrogatories to Petitioner) were offered and received into evidence.
By order issued May 13, 2008, the deadline for the filing of proposed recommended orders was set at ten days from the date of the filing with DOAH of the hearing transcript.
The Transcript of the hearing (consisting of one volume) was filed with DOAH on June 16, 2008.
On June 20, 2008, the Board filed an unopposed motion requesting an extension of the deadline for filing proposed
recommended orders. The motion was granted and the proposed recommended order filing deadline was extended to July 3, 2008.
Petitioner and Respondent timely filed their Proposed Recommended Orders on July 3, 2008.
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:
Petitioner is a 35-year-old divorced man (born in October 1972) who resides in Miami-Dade County, Florida, with his parents.
He is the father of a six-year-old son whom he shares custody of with his former wife.
In early 2003 (when he was 30 years of age), fueled by a desire to increase his wealth, Petitioner engaged in the trafficking of counterfeit Procrit to drug wholesalers.
(Procrit is a prescription drug manufactured by Amgen, Inc.) In so doing, Petitioner recklessly exposed the intended consumers of these counterfeit drugs to the risk of serious bodily harm.
Prior to engaging in this criminal enterprise, Petitioner had lived a law-abiding life.
Petitioner was arrested on or about February 28, 2003, and subsequently charged in the United States District Court for
the Southern District of Florida with the federal crime of trafficking in counterfeit goods in violation of 18 U.S.C. § 2320.
The information against Petitioner alleged, in pertinent part, that, "[f]rom on or about January 20, 2003 to on or about February 27, 2003, at Miami, Miami-Dade County, in the Southern District of Florida, and elsewhere, the defendant, Eddy Gorrin, did intentionally traffic and attempt to traffic in goods, that is, Procrit prescription drugs, and knowingly used a counterfeit mark on and in connection with such goods without authorization from Amgen, Inc., such mark being identical with and substantially indistinguishable from the genuine mark in use and registered for those goods by Amgen, Inc. on the principal register in the United States Patent and Trademark Office, and the use of which counterfeit mark was likely to cause confusion, to cause mistake, and to deceive."
With Petitioner's post-arrest assistance, the authorities recovered all of the counterfeit Procrit that Petitioner and his co-perpetrators had distributed.
On or about May 22, 2003, Petitioner entered into a plea agreement with the federal prosecutor's office. The agreement provided, in pertinent part, as follows:
The defendant agrees to waive prosecution by indictment and plead guilty to Count One of an Information, which
charges the defendant with intentionally trafficking and attempting to traffic in goods and knowingly using a counterfeit mark on those goods in violation of Title 18, United States Code, Sections 2320 and 2.
The defendant is aware that the sentence will be imposed in conformity with the Federal Sentencing Guidelines and Policy Statement (hereinafter "Sentencing Guidelines"), and that the applicable guidelines will be determined by the Court. The defendant is also aware that a sentence imposed under the guidelines does not provide for parole. Knowing these facts, the defendant agrees that this Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense.
This Office and the defendant agree that, although not binding on the Probation Office or the Court, they will jointly recommend that the Court make the following findings and conclusions regarding the applicable Sentencing Guidelines:
Applicable Offense Guideline: That pursuant to Section 1B1.2(a) of the Sentencing Guidelines, the offense guideline applicable to the defendant's offense is Section 2B5.3 of the Sentencing Guidelines, which provides for a base offense level of eight;
Amount of Loss: That under Sections 2B1.1(b)(1) and 1B1.3 of the Sentencing Guidelines, the amount of loss resulting from the defendant's offense conduct is between $200,001 and $400,000, increasing the defendant's offense level by twelve levels.
Manufacture of Counterfeit Drug: That under Section 2B5.3(b)(2) of the Sentencing Guidelines, the defendant's offense involved the manufacture of the counterfeit
prescription drug Procrit and that his offense level should therefore be increased by two levels.
Conscious or Reckless Risk of Serious Bodily Injury: That under Section 2B5.3(b)(4) of the Sentencing Guidelines, the defendant's offense involved the conscious or reckless risk of serious bodily harm, and that as a result, his offense level should be increased by two levels.
Acceptance of Responsibility: That under 3E1.1 of the Sentencing Guidelines, the Sentencing Guideline level applicable to the defendant's offense should be reduced by three levels based upon his recognition and affirmative and timely acceptance of personal responsibility for the offense, provided further that the defendant makes a full, accurate and complete disclosure to the United States Probation Office of the circumstances surrounding defendant's relevant conduct and does not engage in any misconduct after entering into this agreement . . . .
Other Adjustments: That no other additional downward adjustments from Chapters 2 or 3 of the Sentencing Guidelines are applicable in this case.
Restitution and Fine: That pursuant to Section 5E1.1(a) of the Sentencing Guidelines, the defendant agrees that he shall pay restitution in the amount of
$8,000 to the U.S. Food and Drug Administration, which takes into account the
$25,000 voluntarily restituted in March 2003, prior to the filing of the information in this case. It is also agreed that this payment will be a condition of the defendant's probation and/or supervised release.
After a through review by the parties of both the offense conduct and the application
of the Sentencing Guidelines to this offense conduct as outlined in paragraph 3 of this Agreement, this Office and the defendant agree, pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, that the applicable total resulting offense level in this case is an offense level 21. This Office does not object to the defendant's request to be sentenced at the low end of the guideline range, that is, 37 months.
The defendant understands and agrees that the Court may impose any sentence authorized by law and that the defendant may not withdraw his plea solely as a result of the sentence imposed. The defendant also understand and agrees that the Court may impose a statutory maximum term of imprisonment of up to ten years, followed by a maximum supervised release term of three years. In addition to a term of imprisonment and supervised release, the Court may impose a fine up to $2,000,000.
The defendant understands and agrees that, in addition to any sentence imposed under paragraph 5 of this agreement, a special assessment in the amount of $100 will be imposed on the defendant. The defendant agrees that any special assessment imposed shall be paid at the time of sentencing.
The defendant is aware that the sentence has not yet been determined by the Court. The defendant is also aware that any estimate of the probable sentencing range that he may receive from his counsel, the government or the Probation Office, is a prediction, not a promise, and is not binding on the government, the Probation Office or the Court.
* * *
After entering his plea of guilty, Petitioner was sentenced to 37 months in federal prison. He was also fined and ordered to pay restitution.
Petitioner began serving his prison sentence on October 16, 2003.
While in prison, Petitioner took a correspondence course in real estate appraising. He also participated in and completed a nine-month alcohol rehabilitation program (for which he was eligible because he had a history of alcohol abuse). As a result of his completion of the program, his prison sentence was shortened.
In March 2005, Petitioner was released from prison and placed on supervised probation for a period of three years.
For the first six months of his probation, Petitioner was under house arrest and had to wear a monitoring device on his ankle.
Petitioner's probation officer recommended that he be discharged early from probation inasmuch as he had "complied with the rules and regulations of probation/supervised release and [was] no longer in need of supervision." On November 22, 2006, the sentencing judge issued an order adopting this recommendation and discharging Petitioner from probation.
Since his release from prison in March 2005, Petitioner has led a crime-free life and become a productive member of society.
He has abstained from the use of alcohol, with the exception of having an occasional glass of wine.
He has gone back to school and completed the necessary coursework to obtain his Associate of Arts degree from Miami- Dade Community College.
He has been gainfully employed throughout the post- incarceration period.
From March 2005, to April 2006, Petitioner worked for two companies owned by Patsy Stecco: Mortgage Processors of South Florida, Inc., where he helped process mortgages, work that required him to handle money (which he did without incident); and Buyers Home Connection, Inc., where he was a credit analyst with managerial responsibilities. During this time period, he took a "real estate mortgage broker course . . . to get more of an understanding of what the work entail[ed]."
Ms. Stecco has known Petitioner for the past ten years,1 having first met him "through a niece of [hers who] was friend[ly] with his ex-wife."2 Ms. Stecco was aware of Petitioner's criminal past when she hired him.
In April 2006, Petitioner went to work for a Florida- certified residential appraiser, Gaston Gosselin, Jr.
Mr. Gosselin owns his own appraisal business, Precision Appraisers and Company, Inc. He hired Petitioner based upon Ms. Stecco's recommendation.
Before hiring Petitioner, Mr. Gosselin did not inquire as to whether Petitioner had a criminal record, and Petitioner did not volunteer that he did.
It was not until two or three months after Petitioner began working for him that Mr. Gosselin found out (from Ms. Stecco) about Petitioner's criminal past. When Mr. Gosselin confronted Petitioner about the matter, Petitioner was candid and forthright, and he apologized to Mr. Gosselin for not making the disclosure sooner. While Mr. Gosselin was concerned about Petitioner's "initial[]" lack of openness regarding the matter, Petitioner had so impressed him during the "short time" they had known each other that, despite this concern, Mr. Gosselin retained Petitioner as an employee.
Petitioner did research and marketing work for
Mr. Gosselin. He also assisted with office personnel matters.
In February 2008, Mr. Gosselin had to let Petitioner go because, due to deteriorating business conditions, he could no longer afford to keep Petitioner on the payroll. He has "stayed in touch" with Petitioner, however, and now "consider[s] him a friend."
Ms. Stecco and Mr. Gosselin (both of whom testified, credibly, at the final hearing on Petitioner's behalf3) found Petitioner to be a hardworking, quick-learning, reliable, dedicated, competent, honest, and trustworthy employee.
Mr. Gosselin would not hesitate to serve as Petitioner's supervising appraiser were Petitioner's application for registration as a trainee real estate appraiser to be granted.4 He believes that Petitioner would be a "great asset to [him] and [his] business."
Since February 2008, Petitioner has been a staffing manager with Robert Half International (RHI).
RHI does not "know about [Petitioner's] criminal history." It has not "inquire[d] [of Petitioner] about [his] criminal past," and Petitioner has not come forward and made any unsolicited disclosures regarding the matter.
In addition to working full-time for RHI, Petitioner works evenings and weekends for his father's company, EDGO General Consulting Services, Inc. (EDGO), which "owns rental properties." Petitioner collects rents and makes deposits, as well as does needed repair work, for the company.
Petitioner had worked for EDGO prior to his incarceration. In 2001, he was "involved in overseeing" a residential construction project undertaken by the company.
In applying for the staffing manager position he now holds with RHI, Petitioner submitted a copy of a resume, wherein he had listed, "oversee construction development of single family spec homes," as one of his duties at EDGO. In so doing, he meant to convey that "oversee[ing] construction development of single family spec homes" was one of things that he had done during his employment with EDGO, not that it was among his current job duties.
The resume also contained the following entry regarding his employment with Precision Appraisers and Company, Inc. (under the heading of "Professional Experience"):
Precision Appraisers & Company, Inc., Office Manager/Appraiser 04/2006-02/2008
Establish productive marketing strategies and incentives for existing and potential clients.
In charge of interviewing new prospective personnel for clerical and administrative positions.
Research all records of properties being appraised and provide all information to the appraiser performing the appraisal.
Organize bi-weekly payroll for staff and independent contractors.
It was Petitioner's intent, in describing his position as "Office Manager/Appraiser," to indicate that he was an "office manager for an appraiser firm," not that he himself was an appraiser.
Under the heading of "Education/Qualifications" on the resume appeared the following:
Real Estate Appraiser
Real Estate Mortgage Broke[r]
Associates in Arts, Business Administration Petitioner listed "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" under this heading to indicate that he had taken "Real Estate Appraiser" and "Real Estate Mortgage Broke[r]" coursework. He did not mean to represent that he was authorized to act as a "Real Estate Appraiser" and a "Real Estate Mortgage Broke[r]."
While the resume entries discussed above were not models of precision, neither were they intentionally deceptive.
Petitioner has become a more mature and responsible person than he was at the time he engaged in the criminal conduct that led to his incarceration. He is repentant and remorseful about his crime and recognizes the importance of his being a positive role model for his son. He understands all too well what his ill-advised decision five years ago has cost him and his family, particularly his son, who did not have a father around during the time Petitioner was in prison. More importantly, he feels "terribly" about the potential harm to which he exposed the public and is "thankful that no one was [actually] harmed."
Petitioner is embarrassed and ashamed of what he did and is committed to not making the same mistake again in the future and jeopardizing his freedom and ability to be with his son and the rest of his family. He has "learned [a] lesson" from the price he and his family has paid for his one criminal indiscretion. He has no intention of ever "put[ing] [him]self in a position like that again."
In short, in the five years that have passed since his crime, Petitioner has been rehabilitated, and it appears that the interest of the public will not likely be endangered if he is granted the registration he seeks and is able to work as a trainee real estate appraiser under the supervision of a licensed or certified appraiser.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
Petitioner has applied to the Board to become a registered trainee real estate appraiser in Florida.
Florida-registered trainee real estate appraisers may "perform appraisal services only under the direct supervision of a licensed or certified appraiser." § 475.611(1)(n), Fla. Stat.; see also § 475.6222, Fla. Stat. ("The primary or secondary supervisory appraiser of a registered trainee appraiser shall provide direct supervision and training to the registered trainee
appraiser."). "'Direct supervision' means the degree of supervision required of a supervisory appraiser overseeing the work of a registered trainee appraiser by which the supervisory appraiser has control over and detailed professional knowledge of the work being done. Direct supervision is achieved when a registered trainee appraiser has regular direction, guidance, and support from a supervisory appraiser who has the competencies as determined by rule of the [B]oard." § 475.611(1)(k) Fla. Stat.
Florida Administrative Code Rule 61J1-4.010 is entitled, "Supervision and Training of Registered Trainee Appraisers." It provides as follows:
All registered trainee appraisers shall be subject to direct supervision by a supervising appraiser who shall be state licensed or certified in good standing.
The supervising appraiser shall be responsible for the training and direct supervision of the appraiser trainee by:
Accepting responsibility for the appraisal report by signing and certifying the report is in compliance with the Uniform Standards of Professional Appraisal Practice, as defined in Section 475.611(1)(o), F.S.;
Reviewing the appraiser trainee appraisal reports; and
Personally inspecting each appraised property with the appraiser trainee until the trainee is competent in accordance with the Competency Rule of the Uniform Standards of Professional Appraisal Practice, as defined in Section 475.611(1)(o), F.S.
A registered trainee appraiser is
permitted to have more than one supervising appraiser as specified in Section 475.6221, F.S.
Any supervising appraiser, whether acting as primary or secondary supervisor, may not supervise more than 3 registered trainee appraisers at one time.
When supervising any aspect of the appraisal process, a supervising appraiser shall train or supervise appraisers located in:
The county where the supervising appraiser's primary business address is located and registered with the Department; and
Any county contiguous to the county where the supervising appraiser's primary business address is located and registered with the Department.
Appraisal logs shall be maintained by both the registered trainee appraiser and the supervisory appraiser in a format determined by the Department and shall, at a minimum, include the following for each appraisal:
Type of property;
Date of report;
Address of appraised property;
Description of work performed;
Number of work hours; and
Signature and state license certification number of the supervising appraiser.
Separate appraisal logs shall be maintained for each supervising appraiser
and signed by each supervising appraiser.
A supervisory appraiser may not be employed by a trainee or by a corporation, partnership, firm, or group in which the trainee has a controlling interest.
A registered trainee appraiser may accept appraisal assignments only from his or her primary or secondary supervisory appraiser.
A registered trainee appraiser may only receive compensation for appraisal services from his or her authorized certified or licensed appraiser.
Section 475.615, Florida Statutes, sets forth the "qualifications for registration" as a trainee real estate appraiser. Subsection (6) of the statute provides as follows:
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. If any applicant has been denied registration, licensure, or certification, or has been disbarred, or the applicant's registration, license, or certificate 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 part, or if the applicant has been guilty of conduct or practices in this state or elsewhere which would have been grounds for disciplining her or his registration, license, or certification under this part had the applicant then been a registered trainee appraiser or a licensed or certified appraiser, 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 board that the interest of the public is not likely to be endangered by the granting of registration or certification.
Furthermore, Section 475.624(5), Florida Statutes, provides that the denial of an application for registration as a trainee real estate appraiser may be based upon the applicant's having been "convicted or found guilty of, or [having] entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which directly relates to the activities of a registered trainee appraiser or licensed or certified appraiser, or which involves moral turpitude or fraudulent or dishonest conduct." See also § 455.227(1)(c), Fla. Stat., which makes "[b]eing convicted or found guilty of, or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession" a ground upon which boards within the Department of Business and Professional Regulation, such as the Board, may "[r]efus[e] to certify, or to certify with restrictions, an application for a license.").
When presented with an application for registration as a trainee real estate appraiser, the Board is required by Section 120.60(3), Florida Statutes, to give the applicant
"written notice either personally or by mail that [it] intends to grant or deny, or has granted or denied, the
application. . . . The notice must state with particularity the grounds or basis for the issuance or denial of the
registration "
If the Board notifies an applicant that it intends to deny the applicant's application and there are disputed issues of material fact, the applicant is entitled, at his or her request, to an evidentiary administrative hearing conducted pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on such proposed action before the Board takes any final action on the application. See Silver Show, Inc. v. Department of
Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, 706 So. 2d 386, 389 (Fla. 4th DCA 1998)("[F]ormal hearings under sections 120.569 and 120.57 are part of the application process--particularly, as here, where an applicant seeks to contest facts relied on by the Division to deny an application. . . . When a formal hearing has been requested under sections 120.569 and 120.57, as here, the definitive act of denial will not occur until the Division enters a final order at the conclusion of the formal hearing.
That will happen only when the evidence has been heard, the hearing officer has filed a recommended order, and the agency has entered its final order. Anything before the entry of the
final order in contested license hearings is tentative and thus merely proposed.").
The hearing is "a de novo proceeding intended to formulate agency action, and not to review action taken earlier or preliminarily." Beverly Enterprises-Florida, Inc. v. Department of Health and Rehabilitative Services, 573 So. 2d 19,
23 (Fla. 1st DCA 1990). The applicant has the opportunity at the hearing, through his or her presentation, to attempt to persuade the Board to change its mind and issue a final order granting the application for registration. See Capeletti Brothers Inc. v. Department of General Services, 432 So. 2d 1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the purpose of the [Section] 120.57 hearing. The rejection of bids never became final agency action. As we have previously held, APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind."); and Couch Construction Company Inc. v. Department of Transportation, 361 So. 2d 172, 176 (Fla. 1st DCA 1978)("APA hearing requirements are designed to give affected parties an opportunity to change the agency's mind.").
Any final order denying the application for registration must be based solely on the grounds asserted in the notice of intent to deny given the applicant. See M. H. v. Department of Children and Family Services, 977 So. 2d 755 (Fla.
2d DCA 2008)("[T]he notice's exclusive focus on 'significant pulling force' as causing a nonaccidental injury precluded DCF from urging negligence as an alternative ground for denying the renewal of the license at the administrative proceeding.").
In the instant case, the Board, relying of Section 475.615(6), Florida Statutes, as well as "Section 455.227(1)(c), Florida Statutes, and/or Section 475.624(5), Florida Statutes," preliminarily denied Petitioner's application for registration based upon his having "pled guilty to Trafficking in Counterfeit Goods, in violation of 18 U.S.C. Section 2320" and his failure, in his application, to have demonstrated that "sufficient time ha[d] passed since [his criminal] conduct . . . to demonstrate to the Board that the interest of the public is not likely to be endangered by the granting of registration."
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.
The evidence adduced at the hearing indisputably reveals (and Petitioner freely admits) that in 2003, in federal district court, he pled guilty to participating in "trafficking in counterfeit goods" during a one-month period earlier that year.
"Trafficking in counterfeit goods" is a crime "which involves moral turpitude or fraudulent or dishonest conduct,"
within the meaning of Section 475.624(5), Florida Statutes. Cf. United States ex rel. Volpe v. Smith, 289 U.S. 422, 423 (1933)("In 1925 he pleaded guilty and was imprisoned under a charge of counterfeiting obligations of the United States -- plainly a crime involving moral turpitude."); Tall v. Mukasey,
517 F.3d 1115, 1117 (9th Cir. 2008)("Tall . . . petitions for review of the Board of Immigration Appeals' summary affirmance of the Immigration Judge's decision finding him inadmissible for having been convicted of a crime of moral turpitude, namely California Penal Code § 350(a), which punishes '[a]ny person who willfully manufactures, intentionally sells, or knowingly possesses for sale any counterfeit . . . mark.' Tall argues that California Penal Code § 350(a) is not a crime involving moral turpitude. We hold today that it is."); Department of Business and Professional Regulation, Division of Real Estate v. Lipman, No. 93-3843, 1994 Fla. Div. Adm. Hear. LEXIS 5321 *10 (Fla. DOAH April 21, 1994)(Recommended Order)("The crime of conspiracy to counterfeit, by its nature, involves moral turpitude and fraudulent or dishonest dealing."); and Department of Business and Professional Regulation, Division of Real Estate
v. Rossmeyer, No. 90-3568, 1990 Fla. Div. Adm. Hear. LEXIS 6703
*8 (Fla. DOAH September 13, 1990)(Recommended Order)("Petitioner established the allegations of Count II of the Administrative Complaint and Respondent's violation of Section 475.25(1)(f),
Florida Statutes, by establishing that Respondent had been convicted of the crime of counterfeiting, a crime involving moral turpitude or fraudulent or dishonest dealing.").
Accordingly, in order to avoid a finding that, in light of his guilty plea, he does not meet the qualifications for registration as a trainee real estate appraiser set forth in Section 475.615(6), Florida Statutes, and therefore his application for such registration should be denied pursuant Section 475.624(5), 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 is not likely to 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."); 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 ").
Petitioner met his burden of proof through the presentation of his own credible testimony, as well as the testimony of Ms. Stecco and Mr. Gosselin, which the undersigned has also found to be worthy of belief. Cf. Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993)("It would be an anomalous situation indeed if the testimony of the one against whom a complaint is lodged could never form the basis for competent substantial evidence."); Florida Publishing Company v. Copeland,
89 So. 2d 18, 20 (Fla. 1956)("There is no doubt that the testimony of the plaintiff, although uncorroborated, '. if
reasonable on its face, and believed and accepted by the jury as true can carry the burden of proof.'"); Martuccio v. Department of Professional Regulation, Board of Optometry, 622 So. 2d 607, 609-10 (Fla. 1st DCA 1993)(expert testimony of applicant for licensure was not incompetent and could be relied upon "as competent substantial evidence to support hearing officer's conclusions" in proceeding in which applicant was a party);
Western Auto v. Moore, 567 So. 2d 972, 974 (Fla. 1st DCA 1990)("Th[e] burden [on the claimant to establish his or her average weekly wage] can be met by the claimant's own testimony so long as that testimony is competent, substantial, and consistent with logic and reason."); and Raheb v. Di Battisto,
483 So. 2d 475, 476 (Fla. 3d DCA 1986)("We are not persuaded, as urged, that the testimony of the plaintiff Gordon Di Battisto should have been rejected by the trial court as inherently incredible."). Petitioner showed that, given how he has conducted himself and changed his approach to life since his criminal transgression five years ago, it appears that the interest of the public would not likely be endangered by his being granted the registration as a trainee real estate appraiser for which he has applied.5
Accordingly, that Petitioner, in 2003, engaged in and pled guilty to the federal crime of "trafficking in counterfeit goods" does not provide a basis to deny him registration as a trainee real estate appraiser.
RECOMMENDED that the Board issue a Final Order granting Petitioner's application for registration as a trainee real estate appraiser.
DONE AND ENTERED this 11th day of July, 2008, in Tallahassee, Leon County, Florida.
STUART M. LERNER
Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2008.
1 She has known Petitioner's father for an even longer period of time," during which she has "helped him in real estate transactions."
2 Ms. Stecco has "over the years" attended four or five social (non-work-related) functions at which Petitioner was also present, including a birthday party for Petitioner's son, but she does not consider herself to be a "personal friend" of Petitioner's.
3 In evaluating the credibility of Ms. Stecco's and
Mr. Gosselin's testimony, the undersigned has taken into consideration the relationship each of these witnesses had with Petitioner and his family.
4 Mr. Gosselin testified that he would "take [Petitioner] back in a heartbeat."
5 As a registered trainee real estate appraiser, Petitioner would not be unsupervised. He would be "under the direct supervision of a licensed or certified appraiser." §§ 475.611(1)(n) and 475.6222, Fla. Stat.
Michael A. Gross, Esquire Office of the Attorney General Administrative Law Bureau
Frank K. Gregoire, Chairman
Thomas W. O'Bryant, Jr., Director Division of Real Estate
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.
