01-000125 Elnor D. Roberts vs. Department Of Business And Professional Regulation, Division Of Real Estate Status: Closed Recommended Order on Tuesday, September 18, 2001.

Summary: Petitioner failed to prove rehabilitation following her conviction for felony exploitation of the elderly, failure to pay income tax, and revocation of license, even though events took place at least eight years ago.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ELNOR D. ROBERTS, )

)

Petitioner, )

)

vs. ) Case No. 01-0125

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted on July 20, 2001, before

Daniel M. Kilbride, Administrative Law Judge of the Division of

Administrative Hearings, in Viera, Florida.

APPEARANCES

For Petitioner : Frederic Stanley, Jr., Esquire

Stanley, Dehlinger & Rascher

260 Maitland Avenue, Suite 1500

Altamonte Springs, Florida 32701

For Respondent : Sunia Y. Marsh, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building, North Tower

Suite N308

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner is qualified to take the examination for

licensure as a real estate salesperson.

PRELIMINARY STATEMENT

On or about March 1, 2000, Elnor D. Roberts (Petitioner)

submitted an application for licensure as a salesperson to the

Department of Business and Professional Regulation, Division of

Real Estate (Respondent), on behalf of the Florida Real Estate

Commission (FREC). Based upon her responses on the application,

Respondent set a hearing before the FREC for its consideration.

The FREC denied her application on two occasions, and Petitioner

timely requested a formal hearing pursuant to Section 120.57(1),

Florida Statutes. This matter was referred to the Division of

Administrative Hearings on January 9, 2001.

Following three continuances granted at the request of

Petitioner, a formal hearing was held on July 20, 2001.

Official recognition was taken of Chapters 20, 120, 475, 455,

Florida Statutes, and the rules promulgated thereto.

Petitioner's Exhibit one and Respondent's Exhibits one through

nine were admitted in evidence. Petitioner testified in her own

behalf. Neither Petitioner nor Respondent called any additional

witnesses at the hearing. Respondent's request that the

proposed recommended orders were due fifteen (15) days after the

filing of the transcript was granted. The court reporter

forwarded the transcript of the hearing to Respondent.

Respondent's counsel filed a Motion for Extension of Time to

File Proposed Recommended Orders. Respondent's motion was

granted and the time for filing was extended to September 7,

2001. The Transcript was filed on September 10, 2001.

Petitioner has not filed post hearing submittal as of the date

of this Recommended Order. Respondent filed its Proposed

Recommended Order on September 7, 2001.

FINDINGS OF FACTS

1. Respondent, the Department of Business and Professional

Regulation, Division of Real Estate, is an agency of the State

of Florida, charged with the duty inter alia of representing the

Florida Real Estate Commission in matters before the Division of

Administrative Hearings.

2. Petitioner is an applicant for licensure as a real

estate salesperson.

3. On or about March 1, 2000, Petitioner submitted an

application for licensure as a salesperson with Respondent.

Petitioner answered "YES" to questions numbered, nine, ten,

twelve, and thirteen. Respondent attached a two-page letter of

explanation, and attached additional documentation regarding her

disclosures and in support of her application.

4. Question No. 9 states in pertinent part: "Have you

ever been convicted of a crime, found guilty, or enter a plea of

guilty or nolo contendere (no contest), even if adjudication was

withheld?" Petitioner answered "YES" to Question No. 9.

Petitioner disclosed a prior criminal conviction, where on or

about March 10, 1993, in the Circuit Court of Palm Beach County

in Case No. 92-12798CFA02, Petitioner pled guilty to the offense

of "Felony Exploitation of the Elderly." The Judge withheld

adjudication of guilt, placed Petitioner on probation for a

period of five years, and ordered restitution to the victim.

5. The Court granted Petitioner's request for early

termination of probation upon payment of the restitution.

6. Question No. 10 states in pertinent part: "Has any

judgment or decree of a court been entered against you in this

or any other state, . . . in which you were charged in the

petition complaint, . . . with any fraudulent or dishonest

dealing?" Petitioner answered affirmatively, it appears, based

upon her disclosure regarding a federal Internal Revenue Service

matter. Petitioner stated in her letter of explanation that the

case involved her failure to pay income tax and that she was

ordered to pay restitution.

7. Question No. 12 stated in pertinent part: "Have you

ever been denied, or is there now pending a proceeding to deny

your application for licensure, registration, or permit to

practice any regulated profession . . . ." Petitioner answered

affirmatively but the record does not clearly indicate what type

of application Petitioner was referencing as to this question.

8. Question No. 13 stated in pertinent part: "(a ) Has

any license, registration or permit to practice any regulated

profession, occupation, or vocation been revoked, annulled or

suspended in this or any other state, province, district,

territory, possession or nation, upon grounds of fraudulent or

dishonest dealing or violations of law, or is any proceeding now

pending?" Petitioner disclosed a prior disciplinary action

against her former life and health insurance license in the

State of Florida.

9. Respondent's application process revealed the

following:

(a ) In 1984 Petitioner entered into a

Settlement Stipulation with the Department

of Insurance for failing to fill out a

replacement form on a policy. She was

sentenced to two years of probation and a

$500 fine.

(b ) On February 22, 1991, the Department

of Insurance issued a Final Order revoking

Petitioner's license for a period of two

years.

10. Petitioner's application also included four letters of

recommendation.

11. On May 17, 2000, the FREC held a hearing regarding

Petitioner's application. Petitioner requested a

reconsideration hearing before the FREC, and a second hearing

was held on September 20, 2000. The FREC denied her application

on both occasions.

12. Approximately ten years have lapsed from the DOI case

and eight years from the criminal plea.

13. At the formal hearing, Petitioner testified on her own

behalf that while licensed as an insurance agent, she developed

a clientele selling health insurance to senior citizens. In

years prior to the case filed by the Department of Insurance

(DOI), she earned approximately $140,000 per year in income.

14. On or about September 21, 1989, the DOI filed an

Administrative Complaint against Petitioner. Essentially the

complaint charged that Petitioner allegedly sold policies to a

Mrs. Hajek while she suffered from chronic mental disability and

dementia, and that Petitioner knew or should have known this.

Additionally, it charged that she sold policies to individuals

including a Mrs. Holden, while she knew that they were replacing

existing policies with similar provisions already in force, and

that she failed to properly respond to these clients' phone

calls and requests. Lastly, she was charged with selling

replacement policies through misrepresentation.

15. Petitioner stated that several agents in her insurance

office also were charged by the DOI with multiple counts in the

administrative complaint. It was alleged that their clients

were primarily senior citizens who were sold the same type of

insurance policies sold by Petitioner. She testified that to

her knowledge, these individuals accepted plea agreements to

resolve their cases.

16. A formal hearing was held on April 19, 1990. On

November 5, 1990, Hearing Officer Michael M. Parrish issued a

Recommended Order calling for the dismissal of all charges. The

DOI filed exceptions to the recommended order, and the Insurance

Commissioner issued a Final Order on February 22, 1991. The

Commissioner rejected the Department's exceptions one through

eight as to the findings of fact. The Commissioner accepted

Petitioner's exception number three regarding a probation

violation, submitted additional conclusions of law, and found

Petitioner guilty of the charges relating to Mrs. Hajek and

Mrs. Holden. The Commissioner, therefore, adopted the Hearing

Officer's findings of fact and conclusions of law, and added

conclusions of law to support its findings. The Commissioner

ordered that Petitioner's license be revoked for a period of two

years.

17. Petitioner appealed the Final Order, and the Fourth

District Court of Appeals upheld the Final Order of the DOI.

Johnson v. Department of Insurance , 595 So. 2d 56 (Fla. 4th DCA

1992).

18. Petitioner did not reapply for her insurance license

after the two-year revocation period ended.

19. Petitioner also admitted that she was involved in a

case where she owed the Internal Revenue Service $125,000 for

failing to file joint tax returns with her former husband.

Petitioner claimed that the problem stemmed from her husband's

failure to disclose to her what was being done with the parties'

joint assets. Petitioner testified that she settled the matter

with the IRS and does not currently owe any penalty.

20. Petitioner testified at the formal hearing that she

was charged with felony exploitation of the elderly concerning a

loan she received from Thelma Smith. She admitted that she pled

guilty to the charge and was sentenced for the crime.

Petitioner testified that she accepted the plea agreement based

upon her financial situation at the time and that Ms. Smith was

unable to testify at that time. Petitioner failed to provide

any witness or documentary evidence to support her explanation

of the charge at the formal hearing.

21. Petitioner acknowledged that it took greater care and

time to work with her senior clientele than the average

individual while selling insurance. In selling real estate,

some of her clientele might be senior citizens, and she

understands that she may need to explain contracts and

information carefully to such individuals during a transaction.

22. Petitioner has failed to present convincing evidence

to indicate that she is honest, trustworthy, of good character

and has a good reputation for fair dealing to meet the

requirements of Section 475.17, Florida Statutes.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 129.569 and 120.57(1), Florida

Statutes.

24. 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. Sections 475.001 and 475.02,

Florida Statutes. The 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.

25. Respondent's authority is derived from Chapters 475

and 455, Florida Statutes, and the rules promulgated thereto,

specifically, Chapter 61J2, Florida Administrative Code.

Respondent is authorized to represent the FREC in this matter

pursuant to Section 475.021, Florida Statutes.

26. The burden of proof is on Petitioner, as the party

asserting the affirmative of the issue. Florida Department of

Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981) ; Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932, 934 (Fla. 1996).

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 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).

28. "[L ]icensing statutes deal with the question whether a

person is qualified to receive the license in the first

instance, while the disciplinary statutes are penal in nature

and concern whether a license already granted should be

suspended or revoked . . . a mere applicant for a . . . license

has at best the hope of qualifying." Silver Show, Inc. v.

Department of Business and Professional Regulation , 763 So. 2d

348, 349 (Fla. 4th DCA 1998). Administrative agencies possess

discretion when determining whether an applicant should receive

a license, especially when the agency is regulating an

occupation which is deemed a privilege rather than a right.

Astral Liquors, Inc. v. Department of Business and Professional

Regulation , 463 So. 2d 1130, 1132 (Fla. 1985).

29. The questions on the real estate application are

designed to aid FREC in deciding "whether or not [Petitioner]

possessed the necessary qualifications for registration, to-wit,

honesty, truthfulness, trustworthiness, and good character as

required by Section 475.17 . . . " Larson v. Florida Real Estate

Comm. , 227 So. 2d 886, 888 (Fla. 4th DCA 1969). See also Antel

v. Department of Business and Professional Regulation , 522 So.

2d 1056 (Fla. 5th DCA 1988). The application process is

regulatory and the issue is whether the applicant "should . . .

be permitted to engage in the business of a real estate broker.

In such a situation, past irregular conduct may be considered."

Ahern v. Florida Real Estate Comm. , 6 So. 2d 857, 858 (Fla.

1942).

30. Rule 61J2-2.027(2), Florida Administrative Code,

describes the significance of the licensure application. It

says that "[t ]he 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."

31. Section 475.17, Florida Statutes, provides in

pertinent part:

(1)(a ) An applicant for licensure who is

a natural person must . . . be honest,

truthful, trustworthy, and of good

character; and have a reputation for fair

dealing . . . 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 . . . 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.

32. Section 475.25(1), Florida Statutes, authorizes the

Florida Real Estate Commission to deny an application for

licensure if it finds that the applicant:

* * *

(f ) 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 or fraudulent or dishonest

dealing. . . .

* * *

(s ) Has had a registration suspended,

revoked or otherwise acted against in any

jurisdiction. . . .

33. In this case, the allegations of the Department of

Insurance Final Order issued against Petitioner involve conduct

or practices that would have warranted discipline under

Chapter 475, Florida Statutes, as referenced above. The charges

with the Department of Insurance are deemed to involve

fraudulent or dishonest dealing, breach of trust or culpable

negligence in any business transaction.

34. The criminal charge would warrant discipline under

Section 475.25(1)(f), Florida Statutes, as it is a crime

involving moral turpitude or fraudulent or dishonest dealing.

See Pearl v. Florida Board of Real Estate , 394 So. 2d 189 (Fla.

3rd DCA 1981).

35. The Florida Supreme Court discussed moral turpitude in

the following terms:

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. (Citations

omitted). 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 or

judgment when wrong was not contemplated.

State ex. rel. Tullidge v. Hollingsworth , 146 So. 660, 661

(Fla. 1933).

36. Petitioner has failed to prove that she 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. Section

475.17(1)(a), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions

of Law, it is, therefore,

RECOMMENDED that the Florida Real Estate Commission issue a

final order denying Petitioner's application for licensure as a

real estate salesperson in the State of Florida.

DONE AND ENTERED this 18th day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of September, 2001.

COPIES FURNISHED :

Sunia Y. Marsh, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street

Hurston Building, North Tower

Suite N308

Orlando, Florida 32801

Frederic Stanley, Jr., Esquire

Stanley, Dehlinger & Rascher

260 Maitland Avenue, Suite 1500

Altamonte Springs, Florida 32701

Buddy Johnson, Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802-1900

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.