STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID A. REED, )

)

Petitioner, )

)

vs. )

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

Case No. 10-4226

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this matter before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearings, on October 27, 2010, by video teleconference between Tallahassee, Florida, and Fort

Myers, Florida.

APPEARANCES

For Petitioner: David A. Reed, pro se

1336 Golf Drive

Fort Myers, Florida 33919

For Respondent: Thomas Barnhart, Esquire

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

STATEMENT OF THE ISSUE

Whether Petitioner's, David A. Reed, application for a real estate sales associate license should be granted so that he may sit for the salesperson's examination.

PRELIMINARY STATEMENT

On June 2, 2010, Respondent, Florida Real Estate Commission (FREC), filed an order denying Petitioner's application for a real estate sales associate license. On or about June 7, 2010, Petitioner e-mailed a request for a formal hearing to contest the denial. On June 29, 2010, the matter was referred to the Division of Administrative Hearings. On July 29, 2010, a final hearing was scheduled by video teleconference for October 27, 2010, between Tallahassee, Florida, and Fort Myers, Florida.

At the hearing, Petitioner testified on his own behalf and presented his sister, Valarie Tillman, as a witness. Petitioner did not offer any other live witnesses. Petitioner offered six exhibits into evidence, but only Petitioner's Exhibit 2 was admitted into evidence. FREC objected to all exhibits offered by Petitioner, except for Exhibit 2 on the basis of hearsay.

The objection was sustained, except where the documents corroborate non-hearsay evidence. FREC did not offer any witnesses. Respondent's Composite Exhibit-1 (application file) was accepted into evidence without objection.

No transcript was filed. Both parties were advised of their right to submit proposed recommended orders within ten days of the final hearing. FREC submitted its proposal on November 5, 2010, and has been considered in preparing this

Recommended Order. Petitioner has not filed his proposal as of the date of this Order.

FINDINGS OF FACT

1. FREC 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).1

2. Petitioner applied for a real estate sales associate license.

3. FREC stated several factual grounds for the proposed denial of Petitioner's application in the Notice of Intent to Deny.

4. In 1994, Petitioner was arrested and plead guilty to three counts of lewd and lascivious assault on children in the Circuit Court in and for Lee County, Florida. Adjudication was withheld, and Petitioner was placed on supervised probation for ten years and ordered to enroll, and successfully complete, the sex offender treatment program.

5. From 1992 to 1994, Petitioner committed repeated lewd and lascivious assaults upon his daughter and two nieces. His daughter and one niece were between ages six and eight during this time, and his other niece was between the ages of ten and 12.

   
   

6. Petitioner successfully completed the sex offender program and was released from the program in 1999 and supervised probation was terminated early that same year.

7. Thereafter, Petitioner was required, under Florida law, to register as a sex offender and report his whereabouts to law enforcement.

8. Upon his release from treatment, Petitioner was informed that he could schedule a counseling session with his therapist or participate in a group therapy session. Petitioner has indicated that this is unnecessary, and he has not sought assistance in this area.

9. Petitioner has not been arrested or charged with any other disqualifying offense since 1994.

10. Petitioner has started, and still maintains, a successful lawn maintenance business.

11. Petitioner is now working, part-time, for his sister, Valarie Tillman, a real estate broker/owner, in her real estate office in Ft. Myers. She sent a letter of recommendation and testified in his behalf and has offered him a position as a sales associate, should his license be approved.

12. Petitioner also offered four other notarized letters of recommendation. However, they cannot be considered as persuasive in these Findings of Fact because they are hearsay, and the authors are not subject to cross-examination under oath.

    
    

13. Petitioner did not present any disinterested witnesses (or other evidence) who could favorably describe Petitioner's dealings in business matters or transactions. Petitioner did not present sufficient evidence to show that he was honest, truthful, trustworthy, had good moral character, or had a good reputation in the community for fair dealing.

14. Petitioner did not present sufficient evidence to show that he was competent and qualified to make real estate transactions and conduct negotiations with safety to investors "and to those with whom the applicant may undertake a relationship of trust and confidence."

15. Petitioner presented insufficient evidence of rehabilitation from his criminal past.

16. Petitioner plead guilty to three felony counts of lewd and lascivious assault on children. These egregious acts, coupled with a lack of sufficient evidence of rehabilitation, convinces the undersigned to conclude that Petitioner has not satisfied his burden of showing that he is qualified for licensure.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2010).

    
    

18. The FREC consists of seven members acting in its quasi-judicial capacity, charged with the duty to regulate real estate brokers, salespersons, and real estate schools in the interest of the public welfare. §§ 475.001 and 475.02, Fla. Stat. FREC is bound by the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto.

19. FREC's authority is derived from Chapters 475 and 455, Florida Statutes, and the rules promulgated thereto, specifically, Florida Administrative Code Chapter 61J2.

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

21. 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. . . .

       
       

22. Subsection 475.17(1)(a), Florida Statutes, requires an applicant for licensure as a real estate sales associate 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:

    . . . the 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, 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. . . .

    (Emphasis supplied)

    
    

23. Subsection 475.25(1)(f), Florida Statutes, authorizes Respondent to deny an application for licensure if it finds that 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. . . ." An existing license can be disciplined for the same reason.

24. Subsection 475.25(1)(o), Florida Statutes, provides that an applicant may be denied licensure if the applicant:

    . . . has been found guilty of a course of conduct or practices which show that she or he is so incompetent, negligent, dishonest, or untruthful that the money, property, transactions, and rights of investors, or those with whom she or he may sustain a confidential relation, may not safely be entrusted to her or him.

    
    

25. 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.

    
    

    State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933)(citations omitted).

26. Not all crimes involve moral turpitude, and courts have had difficulty in delineating which crimes involve moral turpitude and which ones do not. See, e.g., Milliken v. Dept. of Business & Professional Reg., 709 So. 2d 595, 597 (Fla. 5th DCA 1998); Nelson v. Dept. of Business & Professional Reg., 707 So. 2d 378, 379-80 (Fla. 5th DCA 1998)(Sharp, J., concurring

    
    

    specially). However, lewd and lascivious assaults on young children involve moral turpitude by its nature. See Hamilton v.

    State, 447 So. 2d 1008 (Fla. 5th DCA 1984), and Department of Business and Professional Regulation, Division of Real Estate v. Elbadramany, Case No. 05-4538PL (DOAH December 20, 2006)(adopted in toto March 9, 2007).

27. A professional license is not a right, but a privilege granted by the State. Borrego v. Agency for Health Care Admin., 675 So. 2d 666, 668 (Fla. 1st DCA 1996). The administrative agency (in this case FREC) has "particularly broad discretion in determining the fitness of applicants who seek to engage in an occupation in the conduct of which is a privilege rather than a right." 670 So. 2d at 934 citing Osborne Stern & Co. v.

    Department of Banking and Fin., 647 So. 2d 245 (Fla. 1st DCA 1994)(Booth, J., concurring and dissenting). Administrative agencies possess discretion when determining whether an applicant should receive a license, especially when the agency is regulating an occupation which is deemed to privilege rather than a right. Astral Liquors, Inc. v. Department of Business and Professional Regulation, 463 So. 2d 1130, 1132 (Fla. 1985).

28. Petitioner's criminal history establishes that he has committed multiple acts of moral turpitude and that, at the time of these criminal acts, Petitioner lacked good moral character. Moreover, Petitioner has offered no credible explanation of his

    
    

    offenses, or sufficient evidence that he is now of good moral character.

29. Whether, because of lapse of time and subsequent good conduct and reputation, the interest of the public and investors will not likely be endangered by the granting of a license, Petitioner failed to meet his burden of proof. He presented no disinterested witnesses to support his claims of good moral character, honesty, trustworthiness, and truthfulness. Petitioner's testimony, uncorroborated by a single disinterested witness, is legally insufficient to meet his burden of proof. See Taylor v. Dep't of Business and Professional Regulation, Florida Real Estate Commission, Case No. 06-3036 (DOAH

    January 9, 2007)(adopted by Final Order issued March 22, 2007, concluding that in order to satisfy the two-prong test of Subsection 475.17(1)(a), "Petitioner must offer more than her own statements and those of her personal friend attesting to her good moral conduct over the past nine years. Such statements are insufficient to meet the required burden of proof.").

30. Petitioner has failed to prove that he is qualified to take the examination for licensure as a real estate salesperson, as required by Section 475.17, Florida Statutes. Petitioner has failed to introduce sufficient evidence at the formal hearing to establish evidence of good conduct or reputation in order to overcome the presumption that the interest of the public and

investors will not likely be endangered by the granting of registration. § 475.17(1)(a), Fla. Stat.

RECOMMENDATION

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

RECOMMENDED that the Florida Real Estate Commission enter a final order denying Petitioner's application for licensure as a real estate sales associate in the State of Florida.

DONE AND ENTERED this 28th day of December, 2010, in Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 28th day of December, 2010.

ENDNOTE

1/ All statutory references are to Florida Statutes (2009), unless otherwise indicated.

COPIES FURNISHED:

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

Tallahassee, Florida 32399-1050

David A. Reed 1336 Golf Drive

Fort Myers, Florida 33919

Reginald Dixon, General Counsel Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Roger P. Enzor, Chair Real Estate Commission Department of Business and

Professional Regulation

400 West Robinson Street, Suite N801 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: 10-004226

Orders for Case No: 10-004226