STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the final hearing of this case for the Division of Administrative Hearings (DOAH) by video teleconference on November 20, 2009, in Tallahassee and St. Petersburg, Florida.

APPEARANCES

For Petitioner: Douglas Stewart, pro se

201 55th Avenue, Northeast

St. Petersburg, Florida 33703

For Respondent: Thomas Barnhart, 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 deny an application for a real estate sales associate license on the alleged grounds that Petitioner is in violation of Subsections 417.17(1)(a), 475.181, and 475.25(1)(f), Florida Statutes (2008).1

PRELIMINARY STATEMENT

By Notice of Intent to Deny (Notice of Denial) dated July 8, 2009, Respondent notified Petitioner that Respondent proposed to deny Petitioner's application for a real estate sales associate license. Petitioner timely requested a formal hearing, and Respondent referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner testified and submitted five exhibits for admission into evidence. Respondent called no witnesses and submitted one composite exhibit, but withdrew that exhibit because it is already included in Petitioner’s

Exhibit 1. The identity of the witnesses and exhibits, and the rulings regarding each, are reported in the official record of the hearing. Neither party requested a transcript of the hearing. Petitioner and Respondent timely filed their respective Proposed Recommended Orders on December 2 and November 30, 2009.

FINDINGS OF FACT

1. Respondent is the state agency responsible, in relevant part, for licensing real estate sales associates in the State of Florida, pursuant to Chapter 475. At a date not disclosed in the record, Petitioner applied for a real estate sales associate license, and Respondent subsequently issued the Notice of Denial.

2. Petitioner is a male who was born in 1964 and is approximately 45 years old. From January 26, 1983, through

   May 5, 2002, Petitioner ranged in age from approximately 19-to-

   
   

   38 years old. During those 19 years, Petitioner was convicted of approximately 15 crimes. Approximately seven of those convictions were for felonies.

3. The felony convictions included larceny, aggravated battery with a weapon, burglary, grand larceny, grand theft, and possession of cocaine. Other convictions included resisting arrest without violence, criminal mischief, failure to appear, probation violation, and defrauding an innkeeper.

4. Seven years have elapsed from the last conviction in 2002. During that time, Petitioner has married, purchased a home, and started his own business. However, Petitioner has not demonstrated sufficient rehabilitation when the scope and extent of the criminal history is weighed against the evidence of rehabilitation. Petitioner did not provide any letters of recommendation during the application process.2

   CONCLUSIONS OF LAW

   
   

5. DOAH has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009). DOAH provided the parties with adequate notice of the final hearing.

6. Petitioner bears the ultimate burden of proving his entitlement to a license. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). Petitioner must show by a preponderance of the evidence that he satisfied relevant statutory criteria to be licensed as a real estate sales associate.

7. Subsection 475.17(1)(a) provides, in relevant part, that Petitioner is deemed not to be qualified for a license 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.

For the reasons stated in the Findings of Fact and not repeated here, Petitioner did not satisfy his burden of proof.

RECOMMENDATION

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

RECOMMENDED that Respondent enter a final order denying Petitioner’s application for a license.

DONE AND ENTERED this 21st day of December, 2009, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 21st day of December, 2009.

ENDNOTES

1/ References to subsections, sections, and chapters are to Florida Statutes (2008), unless otherwise stated.

2/ The application requests an applicant to provide at least three letters of recommendation with the application.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-1050

Douglas Stewart

201 55th Avenue, Northeast

St. Petersburg, Florida 33703

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

S. W. Ellis, Chairman Real Estate Commission

Department of Business and Professional Regulation

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

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: 09-004994

Orders for Case No: 09-004994