STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELICA LOPEZ, )

)

Petitioner, )

)

vs. ) Case No. 12-0415

) 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 Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on March 27, 2012, by video teleconference at sites in Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Angelica Lopez, pro se

6484 Catalina Avenue

Tamarac, Florida 33321

For Respondent: Tom Barnhart, Esquire

Special Counsel

Office of the Attorney General The Capitol, Plaza Level 01 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 grounds set forth in Respondent's Notice of Intent to Deny.

PRELIMINARY STATEMENT

On December 28, 2011, Respondent issued a Notice of Intent to Deny Petitioner's application for a real estate sales associate license (Notice). The Notice contained the following "Findings of Fact" and "Conclusions of Law":

FINDINGS OF FACT

1. The "Key for License Denials," attached hereto as Exhibit "A," is hereby adopted and incorporated by reference as the Key to the Commission's Findings of Fact in this case.

   
   

2. Pursuant to the Key for License Denials, the Commission finds the following facts in this case, to wit: 2,4,5

CONCLUSIONS OF LAW

1. The "Key for License Denials," attached hereto as Exhibit "A," is hereby adopted and incorporated by reference as the Key to the Commission's Conclusions of Law in this case.

   
   

2. The Commission concludes that the admitted criminal violations and other facts found constitute the following violations of statutory provisions set forth in the Key for License Denials, to wit: H,M.

   
   

3. The violations of the statutory sections listed above are grounds for denial of this license application.

The "Key for License Denials" attached to the Notice as Exhibit "A" provided, in pertinent part, as follows:

MOTION: I Move the Commission Find the Following Facts: . . . .

* * *

2. FAILURE TO DISCLOSE Applicant's complete criminal record was not revealed in application.

* * *

1. UNPERSUASIVE TESTIMONY Applicant's testimony or evidence in explanation/mitigation was unpersuasive.

   
   

2. CRIMES RECENT Applicant's criminal history is recent in time.

* * *

MOTION: I Move the Commission Find the Following Conclusions of Law: . . . .

* * *

H. Applicant has not had a 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/her easy access to the homes, families or personal belongings of the citizens of Florida 455.201, F.S.

Petitioner subsequently requested a "formal hearing" on the intended denial of her application. The matter was referred to

DOAH on January 26, 2012, for the assignment of an administrative law judge to conduct the hearing Petitioner had requested.

As noted above, the hearing was held on March 27, 2012.

Two witnesses, Petitioner and Henry Iglesia, testified at the hearing. In addition to their testimony, two composite exhibits (Petitioner's Exhibit 1 and Respondent's Exhibit 1) were offered and received into evidence.

With input from the parties, the undersigned set an April 6, 2012, deadline for the filing of proposed recommended orders.

Petitioner and Respondent timely filed their Proposed Recommended Orders on April 2, 2012, and April 6, 2012,

respectively.

FINDINGS OF FACT

1. Petitioner is a 37-year-old working mother who is her family's sole income producer. She has been employed as a property manager for approximately the past 20 years. She currently manages a 300-unit residential property, a job that requires her to deal professionally with others and to have access to and handle property not belonging to her.

2. Petitioner has had three separate brushes with the law, each of which resulted in her being arrested, taken to jail, and

   
   

   charged with criminal wrongdoing (Criminal Incidents). None of these Criminal Incidents were employment-related.

3. In 2005, Petitioner was arrested in Pembroke Pines, Florida, following a traffic stop and charged with two misdemeanors--resisting arrest without violence in violation of section 843.02, and operating a motorcycle without having a valid license authorizing such operation, in violation of section 322.03(4) (2005 Criminal Incident). She pled no contest to both charges. The court withheld adjudication of guilt as to the resisting charge and adjudicated her guilty of the operating without a valid license charge. The only penalty the court meted out was directing Petitioner to pay $226.00 in costs and assessments.

4. In 2007, Petitioner was arrested in Tamarac, Florida, following another traffic stop and charged with the misdemeanor offense of willfully refusing to sign a traffic citation, in violation of section 318.14(3) (2007 Criminal Incident).2/ She pled no contest to the charge. Adjudication of guilt was withheld, and Petitioner was directed to pay $228.00 in costs and assessments. No other penalty was imposed.3/

5. The third and most recent Criminal Incident occurred in Tamarac, Florida, on June 6, 2010, three days after Petitioner had suffered a miscarriage (2010 Criminal Incident). On that date, a depressed and moody Petitioner was involved in a verbal

   
   

   altercation with a neighbor in which the police intervened at the request of the neighbor, who claimed that she and her child had been threatened by Petitioner. The intervention of the police led to Petitioner's arrest. Petitioner was subsequently charged with two misdemeanors--simple assault (on the neighbor), in violation of section 784.011, and resisting arrest without violence, in violation of section 843.02. She pled no contest to both charges. Adjudication of guilt was withheld as to the assault charge, and she was adjudicated guilty of the resisting charge.4/ The court sentenced Petitioner to time served (two days in the Broward County Jail) and directed her to have no contact with the neighbor. It also ordered Petitioner to pay (in "partial payments") $548.00 in costs and assessments, an obligation which Petitioner discharged in full on May 9, 2011, when she made her last "partial payment."5/

6. On September 7, 2011, Petitioner submitted an on-line application for a Florida real estate sales associate license and thereby "attested to the following" (as indicated on the application):

   I certify that I am empowered to execute this application as required by Section 559.79, Florida Statutes. I understand that my signature on this written declaration has the same legal effect as an oath or affirmation. Under penalties of perjury, I declare that I have read the foregoing application and the facts stated in it are true. I understand that falsification of

   
   

   any material information on this application may result in criminal penalty or administrative action, including a fine, suspension or revocation of the license.

   I understand that an electronic signature shall have the same force and effect as a written signature.

   
   

7. The on-line application form Petitioner filled out included the following criminal history question, which Petitioner (truthfully) answered in the affirmative:

   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."

   
   

   Applicants answering "YES" to this question were instructed to provide the following additional information on the application form:

   Offense Type:

   
   

   County:

   
   

   State:

   
   

   Penalty/Disposition:

   
   

   Date of Offense:

   
   

   Have all sanctions been satisfied? Description:

   Petitioner filled out this portion of the form (Criminal History Detail Section) exactly as follows:

   Offense Type: I have been in jail on two occassions for having issues with the authorities and on the other with a neighbor.

   
   

   County: Broward State: Florida

   Penalty/Disposition: This cases unsure of the exact dates were resolved and I only spent one night in jail

   
   

   Date of Offense: 06/01/2008 (mm/dd/yyyy) Have all sanctions been satisfied? Yes

   Description: Again unsure of the exact dates of the arrests, however, if you pull my record you will see this on my background.

   
   

8. Petitioner's failure to be accurate, precise, and thorough in completing the Criminal History Detail Section was the product of laziness and carelessness combined with a faded memory, not any knowing intent on her part to deceive or mislead Respondent about her criminal history. Although she did not make any effort to retrieve court or other public records documenting her criminal history to help refresh her

   
   

   recollection prior to submitting her application, she assumed that Respondent would obtain these records and thereby find out all the information she was asked to provide in the Criminal History Detail Section.

9. Following the submittal of Petitioner's application, Respondent did obtain this information (at least in part, from Petitioner, acting pursuant to requests made by Respondent).

10. At a meeting held on December 14, 2011 (at which Petitioner did not make an appearance, either in person or through counsel or other qualified representative), Respondent determined that Petitioner's application for licensure should be denied.

11. It thereafter issued the Notice that is the subject of this administrative proceeding.

    CONCLUSIONS OF LAW

    
    

12. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120.

13. The Florida Legislature has delegated to Respondent the authority to issue real estate sales associate licenses to qualified applicants. § 475.161.

14. Petitioner has applied for such a license.

    
    

15. Section 475.17 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).

    
    

16. If Respondent is presented with an application for real estate sales associate licensure that it believes is from a section 475.17(1)(a)-disqualified applicant, Respondent must, before taking final action on the application, comply with the notice requirements of section 120.60(3), which provides, in pertinent part, as follows:

    Each applicant shall be given written notice, personally or by mail that the agency intends to . . . deny . . . the application for license. The notice must state with particularity the grounds or basis for . . . denial of the

    license . . . . Unless waived, a copy of the notice shall be delivered or mailed to each party's attorney of record and to each person who has made a written request for notice of agency action. Each notice must inform the recipient of the basis for the agency decision, inform the recipient of any administrative hearing pursuant to ss.

    120.569 and 120.57 or judicial review pursuant to s. 120.68 which may be available, indicate the procedure that must

    
    

    be followed, and state the applicable time limits. The issuing agency shall certify the date the notice was mailed or delivered, and the notice and the certification must be filed with the agency clerk.

    
    

17. At any administrative hearing held on the matter, Respondent bears the burden of proving that 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." See Dep't of Banking & Fin. v. Osborne Stern and

    Co., 670 So. 2d 932, 934 (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.'"); M. H. v. Dep't of Child. & Fam. Servs., 977 So. 2d 755, 761 (Fla. 2d DCA 2008)("[I]f the licensing agency proposes to deny the requested license based on specific acts of misconduct, then the agency assumes the burden of proving the specific acts of misconduct that it claims demonstrate the applicant's lack of fitness to be licensed."); and Fla. 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 of an issue before an administrative tribunal.'"). To meet its burden, Respondent must establish by a preponderance of the evidence the applicant's culpability of the specific act(s) of misconduct alleged in the notice of intent to deny. See M. H., 977 So. 2d

    
    

    at 762-63 ("The only issue before the ALJ was DCF's stated reason for denying the application for the renewal of their foster care license, i.e., whether 'C. S., while in [the Foster Parents'] care, suffered an injury that required significant pulling force and [that] could not be considered

    accidental.' . . . This issue involved a charge of specific misconduct upon which DCF relied as its sole reason for the denial of the Foster Parents' application for the renewal of their foster care license. Accordingly, DCF had the burden of proving this charge of specific misconduct by a preponderance of the evidence."). Once Respondent makes the requisite showing, the burden shifts to the applicant to demonstrate 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 [the licensure the applicant seeks]." See Antel v. Dep't of

    Prof'l Reg., 522 So. 2d 1056, 1058 (Fla. 5th DCA 1988)("The

    
    

    burden of proof of rehabilitation was therefore placed on Antel [the applicant seeking licensure] at the hearing."); State v.

    Hicks, 421 So. 2d 510, 511 (Fla. 1982)("We find that as used in section 810.02(1), the word 'unless' is a qualifier to the primary sentence of the statute, separating the consent phrase from the enacting clause and making consent an affirmative defense."); Baeumel v. State, 7 So. 371, 372 (Fla. 1890) ("[I]f

    
    

    there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but, if there be an exception in a subsequent clause, or a subsequent statute, that is [a] matter of defen[s]e, and is to be shown by the other party.")(internal quotations omitted); Royal v. State, 784 So. 2d 1210, 1211 (Fla. 5th DCA 2001) ("It has long been the rule that if there is an exception in an enacting clause, the party pleading must show that his adversary is not within the exception. If the exception is found in a subsequent clause or statute, however, it is a matter of defense.")(citations omitted); and D.R. v. State, 734 So. 2d 455, 459 (Fla. 1st DCA 1999) ("In subsection (1) of the burglary statute, the term 'unless' qualifies the primary sentence and separates the consent provision from the enacting clause. Consent to enter is an affirmative defense to burglary.").

18. In the instant case, Respondent provided Petitioner with the notice required by section 120.60(3), advising her of its intent to deny her application for licensure because she has a "criminal history [that] is [so] recent in time" she "has not had a sufficient lapse of time, without governmental supervision, to establish rehabilitation by being crime free" and, further, she failed to reveal in her application her "complete criminal record," thus leading Respondent to conclude, in the absence of any persuasive "testimony or evidence in

    
    

    explanation/mitigation" presented by Petitioner, "that it would be a breach of its duty to protect the health, safety and welfare of the public to license [Petitioner] and thereby provide [Petitioner] with easy access to the homes, families or personal belongings of the citizens of Florida." Petitioner subsequently requested, and was granted, an "administrative hearing pursuant to ss. 120.569 and 120.57" on the proposed denial of her application. At that hearing, Respondent failed to meet its burden of proving Petitioner's disqualification from licensure based on the specific acts of misconduct alleged in the Notice.6/

19. Having a "criminal history" and failing to disclose on an application for licensure the complete details of this history are specific acts of misconduct which may under certain circumstances (absent a showing of rehabilitation or mitigation) disqualify an applicant from initial licensure as a real estate sales associate, pursuant to section 475.17(1)(a) read together with the following provisions of sections 475.25 and 475.42:

    475.25. Discipline

    
    

    1. The commission may deny an application for licensure . . . ; may suspend a license, . . . ; may revoke a

       license . . . ; . . . if it finds that the licensee . . . or applicant:

       
       

       1. Has violated any provision of . . . s. 475.42. . . .

    
    

    * * *

    
    

    1. 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. [7/]

       
       

       * * *

       
       

       475.42. Violations and penalties

       
       

       (1) Violations.

       
       

       * * *

       
       

    2. A person may not make any false affidavit or affirmation intended for use as evidence by or before the commission or a member thereof, or by any of its authorized representatives, nor may any person give false testimony under oath or affirmation to or before the commission or any member thereof in any proceeding authorized by this chapter.

    
    

    The record evidence, however, fails to establish the existence of these disqualifying circumstances in the instant case. None of the crimes shown to be a part of Petitioner's "criminal history" (that is, those she "[h]as been convicted or found guilty of, or entered a plea of nolo contendere to") is a crime "which directly relates to the activities of a licensed broker or sales associate, or involves moral turpitude8/ or fraudulent or dishonest dealing," within the meaning of section 475.25(1)(f).9/ Furthermore, Petitioner's failure to give accurate and complete information in the Criminal History Detail

    
    

    Section of her application was not proven to be the product of any knowing intent on her part to deceive or mislead Respondent about her "criminal history." Absent such proof, no violation of section 475.42(1)(g) can be found. See Bailey v. Fla. Real Estate Comm'n, 221 So. 2d 441, 443 (Fla. 4th DCA 1969)("The essential elements necessary to prove a violation of Section 475.42(1)(g), F.S.1967, F.S.A., are (1) that an affidavit was made, (2) that it was intended for use as evidence by the Florida Real Estate Commission, and (3) that the affiant knew at the time of its execution that it was false."); cf. Gentry v.

    Dep't of Prof'l and Occupational Regs., 293 So.2d 95, 97 (Fla. 1st DCA 1974)(statutory provision prohibiting licensed physicians from "[m]aking misleading, deceptive and untrue representations in the practice of medicine" held not to apply to "representations which are honestly made but happen to be untrue;" "[t]o constitute a violation . . . the legislature intended that the misleading, and untrue representations must be made willfully (intentionally)"; and Naekel v. Dep't of Transp., 782 F.2d 975, 977 (Fed. Cir. 1986)("To sustain a charge of 'submitting false information on official government documents,' the agency must prove by a preponderance of the evidence that the employee knowingly supplied wrong information, and that he did so with the intention of defrauding the agency.").

    
    

20. In view of the foregoing, Respondent should continue to process Petitioner's application for licensure as a real estate sales associate and not deny the application on the grounds alleged in the Notice.

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 announcing its intention to continue to process Petitioner's application for licensure as a real estate sales associate rather than denying the application on the grounds stated in its December 28, 2011, Notice of Intent to Deny.

DONE AND ENTERED this 12th day of April, 2012, 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 12th day of April, 2012.

ENDNOTES

1/ Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to that version of Florida Statutes in effect at the time of the occurrence of the particular event or action being discussed.

2/ Petitioner was also cited for three traffic infractions.

3/ Petitioner pled no contest to each of the three traffic infractions with which she had been cited and, as a penalty, was ordered pay a total $141.00 ($47.00 per infraction) in costs and assessments.

4/ In its Proposed Recommended Order (in Proposed Finding of Fact 8), Respondent contends that "Petitioner's own records reflect that [with respect to the 2010 Criminal Incident] she pled no contest to DUI/DWLS/Prostitution/Theft on October 8, 2010 and she was adjudicated guilty of all 4 offenses (P. Ex. 1,

p. 3)." The document (in "Petitioner's own records") to which Respondent is referring is the judgment of conviction entered (on a pre-printed form) in Broward County Court Case No. 10- 11957MM10A (the case relating to the 2010 Criminal Incident). A careful reading of this document, particularly when it is considered together with the other evidence of record, reveals that it actually "adjudges [Petitioner] to be guilty of" the crime of "Resist/Obst. w/o Viol." (which is handwritten on the form) and not "DUI//DWLS//Prostitution//Theft." Although the terms "DUI//DWLS//Prostitution//Theft" do appear on the pre- printed form on which the judgment of conviction in Broward County Court Case No. 10-11957MM10A was entered, neither "DUI," "DWLS," "Prostitution," nor "Theft" is circled, indicating their inapplicability to Petitioner's case.

5/ The suggestion made by Respondent in its Proposed Recommended Order (in the second sentence of Proposed Finding of Fact 9) that "Petitioner has been free from governmental supervision" only since the date she made this last "partial payment" does not find support in the evidentiary record. The record is devoid of any evidence that Petitioner has ever been on probation or any other form of criminal court-imposed "governmental supervision."

6/ As a result, the burden never shifted to Petitioner to show rehabilitation or mitigation.

7/ Section 475.25(1)(m) deals specifically with, and makes disciplinable, acts of "fraud, misrepresentation, or concealment" committed during the licensure application process, but it applies only if the license applied for has already been "obtained," which is not the situation in the instant case.

8/ "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, thoug[h] 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)(citation omitted).

9/ In attempting to persuade the undersigned to conclude otherwise, Respondent argues in its Proposed Recommended Order (in Conclusion of Law 21) that "it is clear that petit theft and assault [the only crimes Respondent identifies in its Proposed Recommended Order as disqualifying under section 475.25(1)(f))) are crimes involving 'moral turpitude.'" While it is true that petit theft is a crime that "involves moral turpitude" (State v. Page, 449 So.2d 813, 815 (Fla. 1984)), it is not, at least as far as the record evidence shows, a crime that Petitioner "[h]as been convicted or found guilty of, or entered a plea of nolo contendere to." The record evidence does show that Petitioner has "entered a plea of nolo contendere to" simple assault, but this crime, unlike petit theft, is not one that "involves moral turpitude." See Fla. Real Estate Comm'n v. Dasta, Case No. 75- 1772, 1976 Fla. Div. Adm. Hear. LEXIS 3751 *5 (Fla. DOAH Apr.

23, 1976; FREC June 8, 1976)("It is obvious that simple assault does not constitute an offense involving moral turpitude."); see also Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1165 (9th Cir.

2006)("With regard to the crime of assault, courts generally have held that a conviction for simple assault does not involve moral turpitude.").

COPIES FURNISHED:

Angelica Lopez

6484 Catalina Avenue

Tamarac, Florida 33321

Tom Barnhart, Esquire Special Counsel

Office of the Attorney General The Capitol,

Tallahassee, Florida 32399-1050

Darla Furst, 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: 12-000415

Orders for Case No: 12-000415