STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final hearing in this matter on January 5,

2009, in Orlando, Florida.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

For Respondent: Thomas Barnhart, Esquire

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

STATEMENT OF THE ISSUE

Should Petitioner, Charles Caputo's, application for a real estate sales associate license be granted.

PRELIMINARY STATEMENT

On August 15, 2008, Respondent, Florida Real Estate Commission, denied Petitioner, Charles Caputo's, license to be a real estate sales associate. On August 21, 2008, Petitioner filed a Petition for Formal Hearing contesting the denial. On October 31, 2008, the matter was referred to the Division of Administrative Hearings.

On that same day, an Initial Order was sent to both parties requesting mutually convenient times for the final hearing.

Based on the response of the parties, on November 25, 2008, the case was scheduled for final hearing on January 5, 2009, in Orlando, Florida.

The case was presented as scheduled. Petitioner testified on his own behalf and presented four witnesses: Linda Howard, Stephanie Jeffcoat, Daniel Paulamontain, and Johnny Peterson.

Respondent did not offer any witnesses. Neither party presented any documentary evidence.

No transcript was filed. Both parties filed Proposed Recommended Orders.

All statutory references are to Florida Statutes (2008), unless otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made:

1. Petitioner is an applicant for licensure as a real estate sales associate. His application was filed on November 3, 2007.

2. Respondent is the state agency responsible for licensing real estate professionals in the State of Florida and has the statutory authority to approve or deny Petitioner's application.

3. Petitioner's application revealed the following record of criminal involvement:

   1. Driving "while ability impaired"--

      
      

      December 21, 1987, Suffolk County, New York. (This is a civil infraction based on a plea to the initial charge of Driving Under the Influence.)

   2. Petit Theft--August 29, 1991, St. Cloud, Florida.

   3. Burglary--July 27, 1997, Orange County, Florida. (Adjudication withheld.)

   4. Passing a Bad Check--March 17, 1998.

      
      

   5. Trespass After Warning--November 13, 2002, Orange County, Florida.

4. When Petitioner applied for a license in 2005, he only disclosed two offenses.

5. On August 7, 2008, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are "Failure to Disclose," "Unpersuasive Testimony," "Crimes Recent," and "Pattern of Crime."

6. In addition, the Notice of Intent to Deny concludes that Petitioner failed "to demonstrate honesty, truthfulness, trustworthiness and good character, a good reputation for fair dealing, competent and qualified to conduct transactions and negotiations with safety to others"; that Petitioner was "guilty of fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme, or device, culpable negligence or breach of trust in a business transaction"; and that Petitioner had been "convicted or found guilty or entered a plea of nolo contender to, regardless of adjudication, a crime which directly relates to the activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealings." Finally, the Notice of Intent to Deny concludes that Petitioner "has not had sufficient lapse of time, without government supervision, to establish rehabilitation by being crime free."

7. The several "character" witness presented by Petitioner were not well-informed regarding Petitioner's criminal history, and while they apparently thought well of him, their testimony was not persuasive.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

9. Petitioner has the burden to prove by a preponderance of the evidence that he satisfied the requirements for licensure as a real estate sales associate. Dept. of Banking and Finance v. Osborne, Stern, and Co., 670 So. 2d 932, 934 (Fla. 1996); Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

10. Section 475.181, Florida Statutes, provides in pertinent part:

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

       
       

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

    475.180. . . .

    
    

11. Subsection 475.17(1)(a), Florida Statutes, requires an applicant for licensure to 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."

12. Section 475.25, Florida Statutes, provides in pertinent part:

    (1) The commission may deny an application for licensure, . . . if it finds that the

    . . . 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. . . .

    
    

13. Subsection 475.17(1)(a), Florida Statutes, reads, in pertinent part, as follows:

    [I]f 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 that the interest of the public and investors will not likely be endangered by the granting of registration.

    
    

14. Petitioner has been found to be "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." Petitioner had

    been convicted of theft and passing a bad check. Petitioner was not honest in completing his initial application. Petitioner, therefore, has the burden of proving by a preponderance of the evidence that "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, it appears to the commission that the interest of the public and investors will not likely be endangered by the granting of registration."

15. Petitioner has not carried the burden of proof.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Charles Caputo's, application for real estate sales associate licensure be denied.

DONE AND ENTERED this 20th day of February, 2009, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 2009.

COPIES FURNISHED:

S. W. Ellis, Chairman

Florida Real Estate Commission Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801 N Orlando, Florida 32801

Ned Luczynski, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

Tallahassee, Florida 32399-1050

Daniel Villazon, Esquire Daniel Villazon, P.A.

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

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: 08-005461

Orders for Case No: 08-005461