STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID TORRES, )

)

Petitioner, )

)

vs. ) Case No. 11-6204

) 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,1/ before Cathy M. Sellers, an Administrative Law Judge of the Division of Administrative Hearings, on April 20, 2012, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: David Torres, pro se

4610 Southwest 34th Street Plantation, Florida 33312

For Respondent: Thomas Barnhart, Esquire

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

STATEMENT OF THE ISSUE

Whether Petitioner is entitled to issuance by Respondent of a real estate sales associate license.

PRELIMINARY STATEMENT

On October 13, 2011, Respondent issued a Notice of Intent to Deny Petitioner's application for a real estate sales associate license. Petitioner timely requested a hearing pursuant to sections 120.569 and 120.57(1) to contest Respondent's proposed denial of his application. The final hearing initially was set for February 17, 2012, then was rescheduled for February 13, 2012. On February 6, 2012, Petitioner requested that the hearing be continued; the request was unopposed and was granted.

The final hearing was held on April 20, 2012. Petitioner testified on his own behalf and did not offer any exhibits for admission into evidence. Respondent called Petitioner as its only witness and Respondent's Composite Exhibit 1 was admitted into evidence without objection.

The parties did not order a transcript of the hearing.

Respondent filed its Proposed Recommended Order on April 27, 2012; Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. The Parties

   
   

   1. Petitioner is an applicant for a real estate sales associate license.

   2. Respondent is the state agency charged with licensing applicants for real estate sales associate licenses.2/ See § 475.181, Fla. Stat.

      
      

2. Background

   
   

   1. Petitioner, a Florida resident, filed an Application for Sales Associate License ("Application"), on Form # DBPR RE 1 ("Form"), on May 25, 2011. The Application was submitted by

      U.S. Mail, and Respondent received the Application on May 31, 2011.

   2. Section III(a) of the Form is entitled "Background Questions." Question 1 of this section asks:

      Have you ever been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, regardless of adjudication, a crime in any jurisdiction, or are you currently under criminal investigation?

      This question applies to any criminal violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943[.]0581, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO"[.] YOUR ANSWER TO THIS QUESTION MAY BE CHECKED AGAINST LOCAL, STATE, AND FEDERAL RECORDS[.] FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN DENIAL OR REVOCATION OF YOU LICENSE[.] IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT[.]

      
      

   3. Petitioner marked the "NO" answer box for question 1 of section III(a) of the Form.

      
      

   4. On June 2, 2011, Respondent sent a letter to Petitioner stating that it did not receive his fingerprinting results, a requirement to enable a complete records check as part of the licensing process.

   5. Respondent had his fingerprints taken on June 13, 2011,3/ and transmitted a copy of the receipt for the fingerprinting to Respondent on June 14, 2011.

   6. Also on June 14, 2011, Petitioner submitted an addendum to his pending Application. In the addendum, Petitioner stated that he had just learned in his first Real Estate licensing exam preparation class that he had to disclose all traffic violations, even those that occurred out of state. Petitioner stated that he had had two "DWAIs"——"driving while impaired" violations——in the state of New York in 1989 and 1999. The addendum further stated: "I do not remember the exact dates, but I believe these are close to accurate."

   7. By its June 2, 2011 letter, Respondent requested additional information from Petitioner regarding his fingerprints for inclusion in his pending Application. Accordingly, Petitioner's Application was not yet complete on June 14, 2011, when Petitioner submitted the addendum to his Application and the fingerprinting receipt to Respondent. See § 120.60(1), Fla. Stat.4/

      
      

   8. On June 21, 2011, Respondent sent Petitioner another request for additional information, this time regarding four criminal offenses Petitioner allegedly committed in the state of New York.5/ The first two offenses involved assault and allegedly occurred in October 1981 and February 1982, when Petitioner was a minor. The second two offenses involved driving while intoxicated and allegedly occurred in 1990 and 2002.6/

   9. On July 25, 2011, Petitioner sent a response letter to Respondent explaining that it was his understanding that all charges regarding the alleged offenses had been dropped. In support, Petitioner provided a letter dated July 20, 2011, from the Deputy Clerk of the Court for Orange County, New York, stating that no criminal records regarding Petitioner were found in Orange County Court files for the time period from 1981 to the present.

   10. Respondent considered Petitioner's Application for approval or denial at its September 21, 2011 meeting.7/

   11. On October 13, 2011,8/ Respondent issued a Notice of Intent to Deny Petitioner's Application. The stated factual basis for denial was that Petitioner did not reveal his complete criminal history in his Application.

   12. The Notice of Intent to Deny concluded that Petitioner "fail[ed] to demonstrate honesty, truthfulness, trustworthiness

       
       

       and good character, a good reputation for fair dealing[,] competent and qualified to conduct transactions and negotiations with safety to others," in violation of sections 475.17(1)(a) and 475.181.

   13. The Notice of Intent to Deny further concluded that pursuant to section 455.201, "it would be a breach of [Respondent's] duty to protect the health, safety, and welfare of the public to license [Petitioner] and thereby provide him/her easy access to the homes, families or personal belongings of the citizens of Florida."

   14. At the final hearing, Respondent stipulated that other than the bases identified in the Notice of Intent to Deny, and subject to passing the licensing exam,9/ Petitioner meets the requirements for licensure as a real estate sales associate.

3. Petitioner Meets the Requirements for Licensure

1. Respondent takes the position that Petitioner's Application should be denied because by marking "NO" to question

   1 in section III(a) of the Form, he failed to reveal his complete criminal history in his Application.

2. However, the evidence establishes that Petitioner did, in fact, disclose his complete criminal history in the application process. Specifically, Petitioner disclosed his DWAIs in the June 14, 2011 addendum that he submitted to Respondent to supplement his pending Application.

   
   

3. Further, Petitioner credibly and persuasively testified that he had not been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, any offenses other than the DWAIs——which he disclosed in his June 14, 2011 addendum——and that it was his understanding that all charges for any such offenses had been dropped. Petitioner's testimony is supported by the letter from the Deputy Clerk of the Court for Orange County, New York, stating that no criminal records regarding Petitioner were found in Orange County Court files.

4. Respondent did not present any competent substantial evidence to establish that Petitioner had been convicted or found guilty of, or entered a plea of nolo contendere or guilty to, a crime in any jurisdiction. The sole evidence Respondent presented regarding Petitioner's criminal history consisted of the June 21, 2011 letter; however, this document is hearsay that does not supplement or explain any other competent substantial evidence in the record and, thus, cannot be afforded weight in proving that Petitioner has a criminal history.

5. The only competent evidence in the record that Petitioner committed any criminal offenses consisted of his own testimony acknowledging two DWAIs in New York, and the June 14, 2011 addendum to his Application disclosing these offenses as part of the application process. As previously stated, Petitioner persuasively testified that he believed all other

charges had been dropped, so he did not provide information on any other offenses in his Application. Accordingly, the evidence establishes that Petitioner revealed his complete criminal record in his Application, through the June 14, 2011 addendum, which was submitted during the pendency of the Application.

1. Further, Petitioner's testimony10/ established that he is honest, trustworthy, of good character, and qualified to conduct transactions and negotiations with safety to others. Petitioner credibly testified that he previously had been a successful business owner before being severely injured in an automobile accident. On the basis of this testimony, Petitioner's forthright testimony regarding his DWAIs,11/ and his disclosure of them during the application process, the undersigned finds that Petitioner has shown that he is honest, truthful, trustworthy, of good moral character, and capable of fair dealings in transactions and negotiations with the public.

2. Respondent provided no competent substantial evidence showing that licensing Petitioner would endanger the health, safety, and welfare of the public.

3. As stated above, Respondent stipulated that other than the bases for denial stated in the Notice of Intent to Deny, Petitioner meets the applicable requirements for licensure as a real estate sales associate, and the evidence establishes that

   
   

   Petitioner disclosed his complete criminal history in his Application. Accordingly, the preponderance of the evidence establishes that Petitioner meets the requirements for licensure as a real estate sales associate.

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has personal and subject matter jurisdiction over this proceeding pursuant to sections 120.569 and 120.57(1).

5. As the applicant for a real estate sales associate license, Petitioner bears the burden to demonstrate, by a preponderance of the evidence, that he meets all applicable licensure requirements such that he is entitled to issuance of the license. See Dep't of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

6. Section 475.181, setting forth the requirements for licensure of real estate sales associates, 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 broker or sales associate.

   2. The commission shall certify for licensure any applicant who satisfies the requirements of ss. 475.17 [12/]

   * * *

   
   

7. Section 475.17(1)(a) provides in pertinent part:

   
   

   An applicant for licensure who is a natural person must ... be honest, truthful, trustworthy, and of good character; and have a good reputation for fair dealing. An applicant for ... a sales associate's license must be competent and qualified to make real estate transactions and conduct negotiations therefore with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence.

   
   

8. Section 455.201, which establishes legislative intent regarding professions and occupations regulated by the Department of Business and Professional Regulation, provides:

   1. It is the intent of the Legislature that persons desiring to engage in any lawful profession regulated by the department shall be entitled to do so as a matter of right if otherwise qualified.

   2. The Legislature further believes that such professions shall be regulated only for the preservation of the health, safety, and welfare of the public under the police powers of the state. Such professions shall be regulated when:

      1. Their unregulated practice can harm or endanger the health, safety, and welfare of the public, and when the potential for such harm is recognizable and clearly outweighs any anticompetitive impact which may result from regulation.

      2. The public is not effectively protected by other means, including, but not limited to, other state statutes, local ordinances, or federal legislation.

      3. Less restrictive means of regulation are not available.

   3. It is further legislative intent that the use of the term “profession” with respect to those activities licensed and regulated by the department shall not be

      
      

      deemed to mean that such activities are not occupations for other purposes in state or federal law.

      (4)(a) Neither the department nor any board may create unreasonably restrictive and extraordinary standards that deter qualified persons from entering the various professions. Neither the department nor any board may take any action that tends to create or maintain an economic condition that unreasonably restricts competition, except as specifically provided by law.

      1. Neither the department nor any board may create a regulation that has an unreasonable effect on job creation or job retention in the state or that places unreasonable restrictions on the ability of individuals who seek to practice or who are practicing a given profession or occupation to find employment.

      2. The Legislature shall evaluate proposals to increase regulation of already regulated professions or occupations to determine their effect on job creation or retention and employment opportunities.

      (5) Policies adopted by the department shall ensure that all expenditures are made in the most cost-effective manner to maximize competition, minimize licensure costs, and maximize public access to meetings conducted for the purpose of professional regulation. The long-range planning function of the department shall be implemented to facilitate effective operations and to eliminate inefficiencies.

      
      

9. Florida Administrative Code Rule 61J2-2.027, governing applications for real estate sales associates licenses, provides in pertinent part:

   1. The applicant must make it possible to immediately begin the inquiry as to whether the applicant is honest, truthful, trustworthy, of good character, and bears a good reputation for fair dealings, and will

      
      

      likely make transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relation of trust and confidence. The applicant is required to disclose:

      1. If ever convicted of a crime, or if any judgment or decree has been rendered against the applicant for fraud or dishonest dealings[.]

   * * *

   
   

10. The evidence establishes that Petitioner disclosed his complete criminal history as required by question 1 of section III(a) of the Form. Accordingly, Petitioner meets the requirements of section 475.17(1)(a).

11. Petitioner also complied with rule 61J2-2.027. This rule specifically requires disclosure of criminal history for the purpose of enabling Respondent to determine if an applicant is honest, truthful, trustworthy, of good character, bears a good reputation for fair dealings, and likely will make transactions and conduct negotiations with safety to investors and to those with whom the applicant may undertake a relation of trust and confidence. The evidence establishes that Petitioner disclosed his complete criminal history, and that he has demonstrated that he possesses the qualities enumerated in the rule and in section 475.17(1)(a). There is no competent substantial evidence in the record to support a contrary conclusion.

    
    

12. Accordingly, there is no factual or legal basis for concluding that by licensing Petitioner, Respondent would breach its duty to protect the health, safety, and welfare of the public, in violation of the legislative intent set forth in section 455.201.

13. Based on the foregoing, Petitioner is entitled to issuance of a real estate sales associate license.

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 approving Petitioner's Application for a real estate sales associate license and certifying Petitioner for licensure as a real estate sales associate license upon his passage of the applicable licensure examination.

DONE AND ENTERED this 2nd day of May, 2012, in Tallahassee,

Leon County, Florida.

S

CATHY M. SELLERS

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 2nd day of May, 2012.

ENDNOTES

1/ All references are to 2011 Florida Statutes.

2/ Upon certification by Respondent that an applicant for a real estate license meets the applicable requirements, the Department of Business and Professional Regulation, Division of Real Estate issues the license. See § 475.181(1), (2).

3/ Petitioner, who is disabled and unemployed, credibly testified that he did not provide fingerprints with the submittal of his Form because he could not afford to have them taken at the time he submitted the Form. He had them taken and submitted the receipt showing they were taken approximately two weeks later, after having borrowed money to pay for having them taken.

4/ Section 120.60(1) provides in pertinent part:

Upon receipt of a license application, an agency shall examine the application, and within 30 days after such receipt, notify the applicant of any apparent errors or omissions and request any additional information the agency is permitted by law to require. An application is complete

upon receipt of all requested information and correction of any such error or omission for which the applicant was timely notified

. . . .

§ 120.60(1), Fla. Stat. (emphasis added).

5/ This evidences that Respondent had not deemed Petitioner's Application complete as of June 21, 2011. See § 120.60(1), Fla. Stat.

6/ The dates of the DWAIs stated in Respondent's June 21, 2011 letter are not exactly those stated in Petitioner's June 14, 2011 addendum. However, Petitioner noted in his addendum that he could not recall the exact dates and provided good faith estimates of when he believed those offenses had occurred. In any event, Respondent's June 21, 2011 letter is hearsay that

does not supplement or explain other competent evidence in the record and therefore cannot be used to establish that Petitioner committed any criminal offenses or the dates of any such offenses. See § 120.57(1)(c), Fla. Stat.

7/ Apparently Respondent considered Petitioner's Application complete sometime after it received his July 25, 2011 letter with the attached letter from the Deputy Clerk for the Orange County Court.

8/ The Notice of Intent to Deny was executed on October 6, 2011, and filed with the agency clerk on October 12, 2011.

9/ Petitioner's passage or failure of the licensing exam is not at issue in this proceeding.

10/ Respondent claims that Taylor v. Dep't of Bus. & Prof. Reg., Fla. Real Estate Comm'n, Case No. 06-3036 (Fla. DOAH Jan. 9, 2007; DBPR Mar. 23, 2007), stands for the principal that as a matter of law, an applicant's sole testimony at hearing is legally insufficient to meet the burden of proof. That characterization is inaccurate. In Taylor, the applicant for a real estate license had an extensive criminal history. The Florida Real Estate Commission expressly directed Taylor to provide multiple corroborative references and letters of recommendation, but Taylor failed to do so. In recommending denial of Taylor's application, the Administrative Law Judge ("ALJ") found that Taylor had failed to comply with a directive of the agency, and that in view of Taylor's extensive criminal history, it was imperative that she provide the requested references and information evidencing her rehabilitation. The ALJ found that under the circumstances, without such requested references, Taylor did not present adequate proof to show that she was honest, truthful, trustworthy, and of good character and reputation. By contrast, here, the agency did not provide any such directive to Mr. Torres regarding the need to provide additional references or witnesses to show that he met the requirements of section 475.17(1)(a). As such, Taylor is factually distinguishable from, and inapposite to, this case.

Furthermore, judging the credibility of witnesses and assigning weight to the competent evidence in the record is exclusively the province of the administrative law judge. See Heifetz v.

Dep't of Bus. Reg., 475 So. 2d 1277 (Fla. 1st DCA 1985).

11/ These offenses, to which Petitioner admitted, took place many years ago and do not call into question Petitioner's moral

character, honesty, truthfulness, trustworthiness, or reputation for fair dealing.

12/ Section 475.181 incorporates the requirements of sections

475.175 and 475.180. Section 475.175 provides that a person is entitled to take the license examination if, among other things, the person submits the appropriate signed or electronically authenticated application, digital fingerprint data, and fee. There is no dispute that Petitioner satisfied these requirements, and, in any event, Respondent stipulated that Petitioner met these requirements. Section 475.180, which addresses licensure of nonresidents, is not applicable to this proceeding.

COPIES FURNISHED:

Thomas Barnhart, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399

tom.barnhart@myfloridalegal.com

David Torres

4610 Southwest 34th Drive

Fort Lauderdale, Florida 33312

Layne Smith, General Counsel DPBP

Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Darla Furst, Chair Real Estate Commission

Department of Business and Professional Regulation

400 West Robinson Street, 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: 11-006204

Orders for Case No: 11-006204