STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEVIN VAUGHAN, JR., )

)

Petitioner, )

)

vs. ) Case No. 11-4979

) FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes (2011), before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on November 18, 2011, by video teleconference at sites in West Palm Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Kevin Vaughn, Jr., pro se

931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409

For Respondent: Tom Barnhart, Esquire

Special Counsel

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

STATEMENT OF THE ISSUE

Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.

PRELIMINARY STATEMENT

On September 9, 2011, Respondent issued a Notice of Intent to Deny Petitioner's application for a real estate sales associate license based on his criminal record and failure to show sufficient rehabilitation. The Notice, which was mailed to Petitioner on September 14, 2011, was accompanied by a Notice of Rights, which advised Petitioner of his right to a hearing on the intended action.

On September 21, 2011, Petitioner, by e-mail, requested a "formal hearing" on the intended denial of his application. The matter was referred to DOAH on September 26, 2011, for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.

As noted above, the hearing was held on November 18, 2011. Petitioner was the only witness to testify at the hearing. In addition to Petitioner's testimony, one exhibit (Respondent's Exhibit 1, a composite exhibit containing the documents maintained by Respondent concerning Petitioner's application)

was offered and received into evidence. No other evidence was presented.

With input from the parties, the undersigned set a December 2, 2011, deadline for the filing of proposed recommended orders.

Respondent timely filed its Proposed Recommended Order on December 2, 2011. To date, Petitioner has not filed any post- hearing submittal.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made:

1. On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter.

   When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged.

2. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of

   
   

   theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen.

3. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation.

4. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing.

5. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.

   CONCLUSIONS OF LAW

   
   

6. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120, Florida Statutes.

   
   

7. The Florida Legislature has delegated to Respondent the authority to issue real estate sales associate licenses to qualified applicants. § 475.161, Fla. Stat. (2011).

8. Petitioner has applied for such a license.

   
   

9. Section 475.17, Florida Statutes (2011), sets forth the qualifications that an applicant for real estate sales associate licensure must meet. It provides, among other things, that, "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 [Respondent] that the interest of the public and investors will not likely be endangered by the granting of registration." § 475.17(1)(a).

10. At all times material to the instant case, having been "found guilty of . . . , regardless of adjudication, a crime in any jurisdiction which . . . involves moral turpitude or fraudulent or dishonest dealing" has been a ground to revoke or suspend a real estate sales associate license under chapter 475.

    § 475.25(1)(f).

    
    

11. In the instant case, Respondent preliminarily denied Petitioner's application for licensure based on his criminal history and failure to show sufficient rehabilitation.

12. Petitioner requested (and was granted) a hearing before a DOAH administrative law judge to challenge this preliminary determination.

13. The evidence received at that hearing indisputably reveals, that in 2007, Petitioner was found guilty, in Cherokee County, Georgia, State Court, of the misdemeanor crime of theft by taking. Such a crime is one "which . . . involves moral turpitude or fraudulent or dishonest dealing," within the meaning of section 475.25(1)(f). See State v. Page, 449 So. 2d 813, 815 (Fla. 1984)("It is our view that the commission of petit theft, or any other offense falling within the scope of chapter 812, Florida Statutes (1981), necessarily involves 'dishonesty' . . . ."); Todd v. Todd, 56 So. 2d 441, 443 (Fla. 1951)("stealing" is an "act[] involving moral turpitude"); Hamilton v. State, 447 So. 2d 1008, 1008-1009 (Fla. 5th DCA 1984) ("[W]e believe that a person who steals is dishonest, and that stealing (or theft) is thus a crime of dishonesty."); and Dep't of Bus. Reg., Div. of Real Estate v. Elbadramany, Case No. 05-4538PL, 2006 Fla. Div. Adm. Hear. LEXIS 593 *23 (Fla. DOAH Dec. 20, 2006; FREC Mar. 22, 2007)("Grand theft involves moral turpitude by its nature."). Accordingly, in order to avoid a

    
    

    finding that he does not meet the qualifications for licensure as a real estate sales associate set forth in section 475.17(1)(a), it was Petitioner's burden to establish at hearing, by a preponderance of the evidence, that, "because of lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient, . . . the interest of the public and investors will not likely be endangered" by the granting of his application. See Dep't of Banking & Fin. v. Osborne Stern and Company, 670 So. 2d 930 (Fla. 1996) ("The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."); and Dep't of HRS v. Career Serv. Comm'n, 289 So. 2d 412, 414 (Fla. 4th DCA 1974) ("[T]he burden of proof is on the party asserting the affirmative on an issue before an administrative tribunal. . . .

    'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding--that is, [a] preponderance of the evidence. It is not satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'"); and § 120.57(1)(j) ("Findings of fact shall be based upon a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute ").

    
    

14. Petitioner failed to meet this burden of proof.

    
    

15. His application for licensure therefore must be

denied.

RECOMMENDATION

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

RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate.

DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 2011.

COPIES FURNISHED:

Kevin Vaughn, Jr.

931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409

Tom Barnhart, Esquire Special Counsel

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

Roger P. Enzor, Chair,

Florida Real Estate Commission

400 West Robinson Street, N801 Orlando, Florida 32801

Layne Smith, 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: 11-004979

Orders for Case No: 11-004979