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 March 8,

2010, in Orlando, Florida.

APPEARANCES

For Petitioner: Darius Jermaine Santiago

1534 Dunlap Drive

Deltona, Florida 32725

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, Darius Jermaine Santiago's, application for a real estate sales associate license be granted.

PRELIMINARY STATEMENT

On October 8, 2009, Respondent, Florida Real Estate Commission, denied Petitioner a license to be a real estate sales associate. On October 21, 2009, Petitioner filed a Petition for Formal Hearing contesting the denial. On November 25, 2009, the matter was referred to the Division of Administrative Hearings (DOAH).

On the same day, November 25, 2009, an Initial Order was sent to both parties requesting mutually convenient times for the final hearing. Based on the response of the parties, on December 18, 2009, the case was scheduled for final hearing by video teleconference on February 3, 2010, in Orlando and Tallahassee, Florida.

On February 2, 2010, a pre-hearing conference was held. Respondent had not received notice of the pending hearing and requested a continuance, the continuance was granted. The case was rescheduled for March 8, 2010, in Orlando, Florida.

The case was presented as rescheduled. Petitioner testified on his own behalf, but did not present additional witnesses. Petitioner offered no exhibits. Respondent had no witnesses, but relied on Respondent’s Composite Exhibit 1 which was admitted into evidence without objection.

No Transcript of Proceedings was ordered. Proposed recommended orders were due to be filed on March 16, 2010.

Respondent timely filed a Proposed Recommended Order on March 12, 2010.

All 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. He is 36 years old and has lived in Florida since June 2004. He works in a Subway restaurant.

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 discloses the following criminal offenses:

   1. Indecent exposure [Exposed sexual organ to law enforcement officer]

      Volusia County, Florida Date of offense 7/28/2005

      Pled no contest; adjudication withheld,

      6 mos. probation, fined.

      
      

   2. Possession of cannabis, possession of narcotic paraphernalia, [Possession of cannabis not more than 20 grams]

      Volusia County, Florida Date of offense 2/9/2009

      Completed a “Level I” program, charge Nolle Prosequi

      
      

   3. Trespassing of conveyance [Accused of entering a truck without permission]

      Volusia County, Florida Date of offense 5/12/2009

      
      

4. In February, 2010, Petitioner pled nolo contendere to the charge referenced in 3c. He has performed 15 of 25 hours of community service imposed by the Court.

5. On October 2, 2009, Respondent denied Petitioner's application for real estate sales associate licensure. The stated reasons listed in the Notice of Intent to Deny are:

   C. Having engaged in conduct or practices which would have been grounds for revoking or suspending a real estate license. 475.17(1)(a), 475.181, F.S.

   
   

   1. Convicted or found guilty or entered a plea of nolo contendere to, regardless of adjudication, a crime which directly relates to activities of a licensed broker or sales associate or involves moral turpitude or fraudulent or dishonest dealing. 475.25(1)(f), 475.181, F.S.

      
      

   2. Applicant has not had sufficient lapse of time, without government supervision, to establish rehabilitation by being crime free.

   
   

   M. The Commission concludes that it would be a breach of its duty to protect the health, safety and welfare of the public to license this applicant and thereby provide him easy access to the homes, families or personal belongings of the citizens of Florida. 455.201, F.S.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in

   accordance with Section 120.569 and Subsection 120.57(1), Florida Statutes (2009).

7. Petitioner has the burden to prove by a preponderance of the evidence that he satisfies the requirements for licensure as a real estate sales associate. See 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).

8. Section 475.181 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. . . .

   
   

9. Subsection 475.17(1)(a) 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.” The statute further provides that an applicant is “deemed not to be qualified” for licensure if:

   [T]he applicant's . . . license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, . . . because of any conduct or practices which would have warranted a like result under

   this chapter, or 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 under this chapter had the applicant then been registered. . . .

   
   

10. Section 475.25 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. . . .

    
    

11. In State ex rel. Tullidge v. Hollingsworth, 146 So. 2d 660, 661 (Fla. 1933), the Florida Supreme Court 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, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.

    
    

12. Petitioner’s plea of nolo contendere to indecent exposure demonstrates that he engaged in an act of moral turpitude. Petitioner’s most recent criminal offense occurred in May 2009. After his nolo contendere plea to this crime, his

    sentencing was three weeks before this hearing and was a reason for continuing the original hearing date in February 2010.

13. Not enough time has passed since Petitioner’s most recent criminal offense to show that he will respect the personal and property rights of others and that he will not endanger the interest of the public and investors by the granting of a license. In addition, Petitioner has offered no credible explanation of his criminal offenses or other evidence of good moral character.

RECOMMENDATION

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

RECOMMENDED that Respondent, Department of Business and Professional Regulation, Division of Real Estate, Florida Real Estate Commission, enter a final order denying Petitioner, Darius Jermaine Santiago’s application for licensure.

DONE AND ENTERED this 6th day of April, 2010, 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 6th day of April, 2010.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-1050

Darius Jermaine Santiago 1534 Dunlap Drive

Deltona, Florida 32725

Thomas W. O’Bryant Jr., Director Division of Real Estate

400 West Robinson Street, N801 Orlando, Florida 32801

Roger P. Enzor, Chair Real Estate Commission

400 W. 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: 09-006520

Orders for Case No: 09-006520