STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Diane Cleavinger, Administrative Law Judge, Division of

Administrative Hearings, on March 29, 2010, in Pensacola, Florida.

APPEARANCES

For Petitioner: Alvah T. Wickboldt, pro se

1150 Fort Pickens Road, Unit F-1 Gulf Breeze, Florida 32561

For Respondents: Tom Barnhart, Esquire

Special Counsel

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

STATEMENT OF THE ISSUE

The issue in this matter is whether Petitioner’s application for a real estate associates’ license should be granted.

PRELIMINARY STATEMENT

On June 24, 2009, Respondent, the Florida Real Estate Commission (Commission or Respondent), issued an order denying Petitioner, Alvah T. Wickboldt’s (Petitioner), application for a real estate associate’s license pursuant to Sections 475.17(1)(a) and 475.25 (1)(f), Florida Statutes. Specifically the denial was based on Petitioner’s criminal history for crimes involving moral turpitude. On July 9, 2009, Petitioner requested a formal hearing on the Commission’s denial. The Request was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in his own behalf and offered three exhibits into evidence. Respondent also presented the testimony of Petitioner and offered one composite exhibit into evidence.

After the hearing, Petitioner did not file a Proposed Recommended Order. Respondent submitted its Proposed Recommended Order on April 16, 2010.

FINDINGS OF FACT

1. Respondent is the state agency responsible for licensing real estate sales associates and brokers in the State of Florida, pursuant to Chapter 475, Florida Statutes (2009).

2. Petitioner is a retired individual from Exxon. He worked as a research technologist for Exxon for 34 years. As

   such, he traveled extensively both in-state and out-of-state for the company. He retired in late 2008 and moved to Florida, shortly thereafter. He lives in Florida with his wife and two step-sons and worked for a brief time in a real estate sales office. During that experience he became interested in obtaining a real estate sales associates’ license and applied for licensure around March 2009.

3. In 1998 or 1999, Petitioner lived in Louisiana where he resided with his daughter. On three separate occasions he either inappropriately touched his daughter in a sexual manner or she inappropriately touched him in a sexual manner. His daughter was about nine years old at the time of the three incidents. However, Petitioner’s actions were not reported to law enforcement until sometime in 2002.

4. In October, 2002, Petitioner was charged with three counts of molestation of a juvenile and aggravated incest in East Baton Rouge Parish, Louisana. On September 10, 2003, Petitioner plead guilty to three counts of molestation of a juvenile and was sentenced to five years of supervised probation with a variety of conditions. The evidence showed that supervised probation in Lousiana is similar to house arrest in Florida.

5. During his supervision, Petitioner participated in and completed therapy with his daughter and ex-wife. According to

   Petitioner, he made amends to both his daughter and other members of her extended family. His daughter, who is now in college, regularly calls him on the phone, visits him in Florida and stays at his house. He testified that they have a close relationship and she has forgiven him. However, Petitioner’s daughter did not testify at the hearing. Indeed, Petitioner did not present any non-hearsay corroboration of his good character or his rehabilitation. Given this lack of evidence, the record is insufficient to establish that Petitioner now has good moral character or rehabilitated himself.

6. Petitioner also testified that after his convictions, he returned to work at Exxon and frequently traveled with special travel permits from the Court and GPS tracking, both in- state and out-of-state, for the company. However, without more details from a credible source, these facts do not establish good moral character or rehabilitation.

7. Petitioner completed his sentence in September 2008, and moved to Florida. He has not had any further criminal involvement with the law. Unfortunately, because of his record, he has had great difficulty finding employment. Petitioner worked as an assistant in a real estate office for about three months; his contact with the public was limited. His work in the real estate office precipitated Petitioner’s interest in becoming licensed. Petitioner testified that the agent he

   worked for was willing to hire him at his office. This agent did not testify at the hearing. Again, Petitioner’s testimony, by itself, is insufficient to establish good moral character.

   Additionally, there has been insufficient time between his release from supervision and the date of the hearing (approximately two years). Given these facts, Petitioner’s application should be denied.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and subject of this proceeding.

   §§ 120.569, 120.57(1), Fla. Stat. (2009).

   
   

9. Section 475.181, Florida Statutes (2009), states, in relevant 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 applicants who satisfies the requirements of ss. 475.17, 475.175, and

      475.180 . . . .

      
      

10. Section 475.25(1)(f), Florida Statutes (2009), authorizes the Commission to deny an application for licensure if the applicant has “been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction, which, . . . involves moral turpitude ”

11. Section 475.17(1)(a), Florida Statutes, states, in relevant part, that the applicant is “deemed not to be qualified” for licensure:

    . . . if 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 had the applicant then been registered,

    . . . 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

    . . . .

    
    

12. The Supreme Court of Florida in State ex rel. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933), defined “moral turpitude” as follows:

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to society. It has also been defined as anything done contrary to justice, honesty, principle or good morals, . . .

    
    

    See also Milliken v. Department of Business and Professional Regulation, 709 So. 2d 595 (Fla. 5th DCA 1998), and Nelson v. Department of Business and Professional Regulation, 707 So. 2d

    378 (Fla. 5th DCA 1998).

    
    

13. The Petitioner has the burden of showing by a preponderance of the evidence that he meets the statutory requirements for licensure. Department of Banking and Finance,

    Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996), and Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

14. In this case, there is no doubt that Petitioner’s actions towards his daughter and his convictions for those actions constitute crimes involving moral turpitude. The question is whether Petitioner has provided evidence that he has rehabilitated himself since the commission of those acts and the completion of his sentence therefore.

15. To his credit, Petitioner recognizes the seriousness of his acts and has not re-offended since those acts. Through counseling, he has made efforts to mend his breach of trust with his daughter. However, Petitioner’s daughter did not testify at the hearing. Additionally, while Petitioner testified about the recidivism rate for his type of offender, there was no substantively credible evidence offered from an expert or recognized authoritative source on the subject. Such opinion evidence is insufficient to establish that Petitioner is no longer a danger to the public or has been rehabilitated. Moreover, except for his testimony, Petitioner offered no non- hearsay evidence that he has been rehabilitated. In this case, self-serving statements, without more, are insufficient to establish rehabilitation. See Taylor v. Department of Business

and Professional Regulation, Florida Real Estate Commission, DOAH Case No. 06-3036 (Recommended Order issued January 9, 2007, Final Order issued March 22, 2007). Finally, Petitioner’s sentence was completed in 2008, approximately one year from the date of his application and two years from the date of the hearing in this case. While recognizing that the acts which underlie the Petitioner’s crimes occurred over 10 years ago and the extraordinary seriousness of Petitioner’s crimes, the evidence did not demonstrate that sufficient time has passed since the completion of Petitioner’s supervision to enable an inference that Petitioner has rehabilitated himself. Petitioner does seem to be making every effort to rehabilitate himself and may in the future be able to demonstrate such rehabilitation.

However, that time is not now. Therefore, Petitioner’s application for licensure should be denied.

RECOMMENDATION

Based on the findings of fact and conclusions of law, it is RECOMMENDED that the Florida Real Estate Commission enter a Final Order finding that Petitioner failed to establish by a preponderance of the evidence that Petitioner has been rehabilitated sufficient to show good moral character and denying Petitioner’s application for licensure.

DONE AND ENTERED this 4th day of May, 2010, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 4th day of May, 2010.

COPIES FURNISHED:

Alvah T. Wickboldt

1150 Fort Pickens Road, Unit F-1 Gulf Breeze, Florida 32561

Tom Barnhart, Esquire Special Counsel

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

Roger P. Enzor, Chair

Florida Real Estate Commission Department of Business

and Professional Regulation

400 West Robinson Street, N801 Orlando, Florida 32801

Reginald Dixon, 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: 09-004030

Orders for Case No: 09-004030