STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEROY L. BAINES, JR.,

vs.

Petitioner,

Case No. 15-1959

FLORIDA REAL ESTATE COMMISSION,

Respondent.

/

RECOMMENDED ORDER

A final hearing was held in this matter before David M. Maloney, Administrative Law Judge with the Division of Administrative Hearings, on June 23, 2015, by video teleconference sites located in West Palm Beach and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Leroy L. Baines, Jr., pro se

4808 Northwest 8th Court Lauderhill, Florida 33317

For Respondent: Tom Barnhart, Esquire

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

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for a license from the Florida Real Estate Commission was properly denied.

PRELIMINARY STATEMENT

On April 10, 2015, the Florida Real Estate Commission filed a document entitled “Referral for Hearing” (the “Referral”) with the Division of Administrative Hearings (“DOAH”). The Referral requested DOAH to assign an administrative law judge to hear disputed issues of fact arising from a Notice of Intent to Deny. The notice had denied Petitioner’s application for a sales associate license from the Florida Real Estate Commission.

Attached to the Referral were the notice and a request for a formal hearing from Petitioner.

The undersigned was designated as the administrative law judge to conduct the proceedings. A Notice of Hearing by Video Teleconference was issued for June 23, 2009, with sites in Tallahassee and West Palm Beach. The case was heard as scheduled. Petitioner appeared in the presence of a court reporter at the West Palm Beach video teleconference site.

Counsel for the Florida Real Estate Commission attended at the DOAH Tallahassee site in the presence of the undersigned.

Petitioner presented his own testimony. No other witnesses were called by Petitioner, and Petitioner offered no exhibits.

Respondent’s case consisted of the cross-examination of Petitioner and one exhibit, labeled “Respondent’s Ex. No. 1” (a certified copy of Petitioner’s application file). The exhibit consists of 49 pages certified to have been “maintained in the

ordinary course of business of the Division of Real Estate of the State of Florida, Department of Business and Professional Regulation.”

A transcript of the final hearing was not ordered by either party. On July 6, 2015, Respondent filed a proposed order containing findings of fact and conclusions of law. Petitioner did not file a proposed order. References to statutes are to Florida Statutes (2014) unless otherwise noted.

FINDINGS OF FACT

1. Petitioner, his Background, and the Application

1. Leroy L. Baines, Jr., was born on October 31, 1985.

   
   

2. Currently 29 years old, he is employed with a financial services company. He serves on the board of a non-profit organization called Butterfly Foundation Group. The organization works with underprivileged and at-risk youth. He also works with J.J.’s Boxing Club and Global Village, both non-profit entities.

3. In 2005, Mr. Baines pled no contest to a criminal traffic infraction: operating a motor vehicle without a valid license (“Criminal Traffic Infraction No. 1”). He was adjudicated guilty and sentenced. Respondent’s Ex. No. 1 at 00028.

4. The following calendar year, 2006, Mr. Baines was convicted of driving while his license was cancelled, suspended,

   
   

   revoked, or he was disqualified from holding a license (“Criminal Traffic Infraction No. 2”). Id. at 00022.

5. In 2008, in the U.S. District Court for the Southern District of Florida, Mr. Baines pled guilty and was adjudicated guilty of two federal crimes: 1) conspiracy to interfere with interstate commerce by robbery, and 2) carrying a firearm during and in relation to a crime of violence (the “Federal Criminal Offenses”). Id. at 00013.

6. Mr. Baines was sentenced to 55 months imprisonment for the Federal Criminal Offenses on June 18, 2008. He served his sentence in prisons located in Florida, Texas, and North Carolina. His sentence expired on June 30, 2014, and he was discharged from supervision on September 3, 2014. Id. at 00040.

7. On April 11, 2014, Respondent received Mr. Baines’ application for licensure as a real estate associate (the “Application”). He answered “Yes” to Background Question 1, which 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 . . . ?” Id. at 00010.

8. After the background questions in the Application, the Application states, “If you answered ‘YES’ to any question in [the background questions], please refer to Section IV of the Instructions for detailed instructions on providing complete

   
   

   explanations, including requirements for submitting supporting legal documents.” Id.

9. In the Application’s “Section IV(b) – Explanation(s) for Background Question 1,” Petitioner listed the Federal Criminal Offenses. For one of the two offenses under “Penalty/Disposition,” he wrote “Time Served”; for the other, he wrote “55 months.” Id. Under “Description” as to each of the

   two Federal Criminal Offenses, Petitioner wrote, “5 years Supervised Release.” Id.

10. Despite the Application’s detailed instructions that require criminal traffic infractions to be listed (“This question applies to any criminal violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses . . . .” Id.), Petitioner

    failed to list the two Criminal Traffic Infractions.

    
    

    Petitioner’s Case

    
    

11. Mr. Baines testified that his application should be granted because he has cooperated with Respondent by providing everything that was asked of him during the Application review process. Although he had not included the Criminal Traffic Infractions on the written Application, he freely admitted during the hearing it was his responsibility at the time he made out the Application to report them and to offer any relevant explanation of them.

    
    

12. With regard to the Criminal Traffic Infractions,

    
    

    Mr. Baines testified he spent 30 days in the Orange County Jail. He seeks leniency in this application process based on his age at the time of the offenses which he claimed, at first, was 16.

    Noting the difference between his birthday and 2005 and 2006, Mr. Baines conceded during cross-examination that he was several years older than 16 at the time of the Criminal Traffic Infractions.

13. Mr. Baines elaborated on the Federal Criminal Offenses explaining that he had fallen in with former high school friends whom he had not seen for some time when they recruited him to drive the get-away car in a robbery. He stated that at the time of the crime he was in possession of two guns both of which he had been carrying legally prior to the crime: a nine millimeter Glock and a .40 caliber handgun.

14. Mr. Baines’ time in prison was spent without any violations of prison rules, according to his testimony, and he completed the post-release program successfully. His success in serving his time is the basis, Mr. Baines asserted, for his release from federal supervision so promptly after the expiration of the sentence. No documentation of “good behavior” in prison, however, was offered at hearing.

15. In an attempt to demonstrate rehabilitation, Mr. Baines referred to his service to the Butterfly Foundation, J.J.’s

    
    

    Boxing Club, and the other two non-profit organizations with which he works that serve at-risk youth in the Pompano and Fort Lauderdale areas. He also averred that he had been cleared by the Department of Children and Families (“DCF”) to work with underprivileged youth for cheerleading and gymnastics although he offered no supportive documentary evidence from DCF.

16. Mr. Baines did submit to Respondent as part of his application three documents related to rehabilitation. The first extolled his work as an employee. The second was written by a teacher at Stranahan High School who is a fellow basketball player at pick-up games in a public basketball court in Plantation, Florida. The third was written by his pastor at the Living Waters Sanctuary in Oakland Park, Florida. The authors of the letters all write highly of Mr. Baines.

17. In support of his case for rehabilitation, Mr. Baines testified that after his conviction for the Federal Criminal Offenses, he had had only one slip-up: a urinalysis (“UA”) positive for marijuana, a substance he had used as a youth.

    Mr. Baines claimed that the UA was conducted only because those supervising his post-release case sent him for the testing after Mr. Baines had voluntarily acknowledged his recent use of marijuana. But for the single marijuana incident, Mr. Baines asserted under oath that his record after his conviction, in prison and out of prison during a post-incarceration discharge

    
    

    period, had been spotless. His admirable conduct, he testified, is what led to the court to promptly release him from federal supervision.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction of the subject matter of this proceeding and of the parties pursuant to sections 120.569 and 120.57, Florida Statutes.

19. Section 475.17, Florida Statutes, sets forth the “qualifications for . . . licensure” for the position of real estate associate. Subsection (1)(a) of the statute provides as follows:

    An applicant for licensure who is a natural person must 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. An applicant for an active broker’s license or a sales associate’s license must be competent and qualified to make real estate transactions and conduct negotiations therefor with safety to investors and to those with whom the applicant may undertake a relationship of trust and confidence. If the applicant has been denied registration or a license or has been disbarred, or the applicant’s registration or license to practice or conduct any regulated profession, business, or vocation has been revoked or suspended, by this or any other state, any nation, or any possession or district of the United States, or any court or lawful agency thereof, 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.

    
    

20. Furthermore, section 475.25(1)(f), Florida Statutes, provides that an application for licensure as a real estate sales associate may be denied if the applicant “[h]as 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.” (emphasis added).

21. The Federal Criminal Offenses of which Mr. Baines was convicted are crimes that involve moral turpitude or dishonest dealing. See State v. Page, 449 So. 2d 813, 815 (Fla. 1984) (“Any . . . offense falling within the scope of chapter 812, Florida Statutes, . . . necessarily involves ‘dishonesty’ . . . .”); Hamilton v. State, 447 So. 2d 1008-09,

    (Fla. 5th DCA 1984) (“We believe that a person who steals is dishonest, and that stealing (or theft) is thus a crime of

    
    

    dishonesty.”). Participation in robbery with a firearm, pursuant to section 812.13, Florida Statutes, is a first degree felony.

22. Respondent, therefore, properly denied Mr. Baines the license applied for unless “lapse of time and subsequent good conduct and reputation, or other reason deemed sufficient,” section 475.25(1)(f), demonstrates an appearance that the interest of the public and investors will not likely be endangered by the granting of the license.

23. Petitioner, as the applicant, has the burden to prove by a preponderance of the evidence that he satisfies the requirements for licensure as a sales associate. See Dep’t of Banking & Fin. v. Osborne, Stern & Co., 670 So. 2d 932, 934 (Fla.

    1st DCA 1996). That burden extends to proof that lapse of time and good conduct and reputation show that the interests of the public and investors will not likely be endangered by the approval of his licensure application.

24. Petitioner has not carried that burden.

    
    

25. First, there has not been sufficient time since his release from federal supervision of rehabilitation independent of oversight by criminal justice authorities: less than ten months at the time of hearing. This factor alone is a ground for denial of his application.

26. Second, the evidence of good conduct and reputation provided by Petitioner, although relevant and of help to his

cause, are plainly insufficient. This is not to say that

Mr. Baines has not made progress or that he is not on a course toward rehabilitation. To the contrary, as Respondent put it in its Proposed Recommended Order, Mr. Baines has taken steps in the right direction. Respondent’s PRO, at 7, para. 17. In order to

assure the Commission that the public and investors will not likely be endangered by his licensure, however, Petitioner must demonstrate good conduct and reputation (“steps in the right direction”) by evidence that swings the balance toward his case in a decision governed by the “preponderance” standard. This is true in the case of any applicant with a past of crimes involving moral turpitude and dishonest dealings. But it is particularly pertinent in Mr. Baines’ case, given the nature of the criminal offenses for which he was convicted: a conspiracy to interfere with interstate commerce by robbery and one that involved dangerous firearms in a crime of violence. In the face of these serious convictions, if Petitioner is to be determined not to be a danger to real estate investors and members of the public engaging in real estate matters, he must provide evidence of significantly greater weight than merely his own testimony and three letters of reference.

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.

DONE AND ENTERED this 16th day of July, 2015, in Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

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 16th day of July, 2015.

COPIES FURNISHED:

Leroy L. Baines, Jr. 4808 Northwest 8th Court

Lauderhill, Florida 33317

Tom Barnhart, Esquire

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

William N. Spicola, General Counsel Department of Business and

Profession Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399 (eServed)

Darla Furst, Chair Real Estate Commission

Department of Business and Profession Regulation

400 West Robinson Street, N801 Orlando, Florida 32801 (eServed)

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: 15-001959

Orders for Case No: 15-001959