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.


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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.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8ELNOR D. ROBERTS, )

12)

13Petitioner, )

15)

16vs. ) Case No. 01-0125

21)

22DEPARTMENT OF BUSINESS AND )

27PROFESSIONAL REGULATION, )

30DIVISION OF REAL ESTATE, )

35)

36Respondent. )

38)

39RECOMMENDED ORDER

41A formal hearing was conducted on July 20, 2001, before

51Daniel M. Kilbride, Administrative Law Judge of the Division of

61Administrative Hearings, in Viera, Florida.

66APPEARANCES

67For Petitioner : Frederic Stanley, Jr., Esquire

74Stanley, Dehlinger & Rascher

78260 Maitland Avenue, Suite 1500

83Altamonte Springs, Florida 32701

87For Respondent : Sunia Y. Marsh, Esquire

94Department of Business and

98Professional Regulation

100400 West Robinson Street

104Hurston Building, North Tower

108Suite N308

110Orlando, Florida 32801

113STATEMENT OF THE ISSUE

117Whether Petitioner is qualified to take the examination for

126licensure as a real estate salesperson.

132PRELIMINARY STATEMENT

134On or about March 1, 2000, Elnor D. Roberts (Petitioner)

144submitted an application for licensure as a salesperson to the

154Department of Business and Professional Regulation, Division of

162Real Estate (Respondent), on behalf of the Florida Real Estate

172Commission (FREC). Based upon her responses on the application,

181Respondent set a hearing before the FREC for its consideration.

191The FREC denied her application on two occasions, and Petitioner

201timely requested a formal hearing pursuant to Section 120.57(1),

210Florida Statutes. This matter was referred to the Division of

220Administrative Hearings on January 9, 2001.

226Following three continuances granted at the request of

234Petitioner, a formal hearing was held on July 20, 2001.

244Official recognition was taken of Chapters 20, 120, 475, 455,

254Florida Statutes, and the rules promulgated thereto.

261Petitioner's Exhibit one and Respondent's Exhibits one through

269nine were admitted in evidence. Petitioner testified in her own

279behalf. Neither Petitioner nor Respondent called any additional

287witnesses at the hearing. Respondent's request that the

295proposed recommended orders were due fifteen (15) days after the

305filing of the transcript was granted. The court reporter

314forwarded the transcript of the hearing to Respondent.

322Respondent's counsel filed a Motion for Extension of Time to

332File Proposed Recommended Orders. Respondent's motion was

339granted and the time for filing was extended to September 7,

3502001. The Transcript was filed on September 10, 2001.

359Petitioner has not filed post hearing submittal as of the date

370of this Recommended Order. Respondent filed its Proposed

378Recommended Order on September 7, 2001.

384FINDINGS OF FACTS

3871. Respondent, the Department of Business and Professional

395Regulation, Division of Real Estate, is an agency of the State

406of Florida, charged with the duty inter alia of representing the

417Florida Real Estate Commission in matters before the Division of

427Administrative Hearings.

4292. Petitioner is an applicant for licensure as a real

439estate salesperson.

4413. On or about March 1, 2000, Petitioner submitted an

451application for licensure as a salesperson with Respondent.

459Petitioner answered "YES" to questions numbered, nine, ten,

467twelve, and thirteen. Respondent attached a two-page letter of

476explanation, and attached additional documentation regarding her

483disclosures and in support of her application.

4904. Question No. 9 states in pertinent part: "Have you

500ever been convicted of a crime, found guilty, or enter a plea of

513guilty or nolo contendere (no contest), even if adjudication was

523withheld?" Petitioner answered "YES" to Question No. 9.

531Petitioner disclosed a prior criminal conviction, where on or

540about March 10, 1993, in the Circuit Court of Palm Beach County

552in Case No. 92-12798CFA02, Petitioner pled guilty to the offense

562of "Felony Exploitation of the Elderly." The Judge withheld

571adjudication of guilt, placed Petitioner on probation for a

580period of five years, and ordered restitution to the victim.

5905. The Court granted Petitioner's request for early

598termination of probation upon payment of the restitution.

6066. Question No. 10 states in pertinent part: "Has any

616judgment or decree of a court been entered against you in this

628or any other state, . . . in which you were charged in the

642petition complaint, . . . with any fraudulent or dishonest

652dealing?" Petitioner answered affirmatively, it appears, based

659upon her disclosure regarding a federal Internal Revenue Service

668matter. Petitioner stated in her letter of explanation that the

678case involved her failure to pay income tax and that she was

690ordered to pay restitution.

6947. Question No. 12 stated in pertinent part: "Have you

704ever been denied, or is there now pending a proceeding to deny

716your application for licensure, registration, or permit to

724practice any regulated profession . . . ." Petitioner answered

734affirmatively but the record does not clearly indicate what type

744of application Petitioner was referencing as to this question.

7538. Question No. 13 stated in pertinent part: "(a ) Has

764any license, registration or permit to practice any regulated

773profession, occupation, or vocation been revoked, annulled or

781suspended in this or any other state, province, district,

790territory, possession or nation, upon grounds of fraudulent or

799dishonest dealing or violations of law, or is any proceeding now

810pending?" Petitioner disclosed a prior disciplinary action

817against her former life and health insurance license in the

827State of Florida.

8309. Respondent's application process revealed the

836following:

837(a ) In 1984 Petitioner entered into a

845Settlement Stipulation with the Department

850of Insurance for failing to fill out a

858replacement form on a policy. She was

865sentenced to two years of probation and a

873$500 fine.

875(b ) On February 22, 1991, the Department

883of Insurance issued a Final Order revoking

890Petitioner's license for a period of two

897years.

89810. Petitioner's application also included four letters of

906recommendation.

90711. On May 17, 2000, the FREC held a hearing regarding

918Petitioner's application. Petitioner requested a

923reconsideration hearing before the FREC, and a second hearing

932was held on September 20, 2000. The FREC denied her application

943on both occasions.

94612. Approximately ten years have lapsed from the DOI case

956and eight years from the criminal plea.

96313. At the formal hearing, Petitioner testified on her own

973behalf that while licensed as an insurance agent, she developed

983a clientele selling health insurance to senior citizens. In

992years prior to the case filed by the Department of Insurance

1003(DOI), she earned approximately $140,000 per year in income.

101314. On or about September 21, 1989, the DOI filed an

1024Administrative Complaint against Petitioner. Essentially the

1030complaint charged that Petitioner allegedly sold policies to a

1039Mrs. Hajek while she suffered from chronic mental disability and

1049dementia, and that Petitioner knew or should have known this.

1059Additionally, it charged that she sold policies to individuals

1068including a Mrs. Holden, while she knew that they were replacing

1079existing policies with similar provisions already in force, and

1088that she failed to properly respond to these clients' phone

1098calls and requests. Lastly, she was charged with selling

1107replacement policies through misrepresentation.

111115. Petitioner stated that several agents in her insurance

1120office also were charged by the DOI with multiple counts in the

1132administrative complaint. It was alleged that their clients

1140were primarily senior citizens who were sold the same type of

1151insurance policies sold by Petitioner. She testified that to

1160her knowledge, these individuals accepted plea agreements to

1168resolve their cases.

117116. A formal hearing was held on April 19, 1990. On

1182November 5, 1990, Hearing Officer Michael M. Parrish issued a

1192Recommended Order calling for the dismissal of all charges. The

1202DOI filed exceptions to the recommended order, and the Insurance

1212Commissioner issued a Final Order on February 22, 1991. The

1222Commissioner rejected the Department's exceptions one through

1229eight as to the findings of fact. The Commissioner accepted

1239Petitioner's exception number three regarding a probation

1246violation, submitted additional conclusions of law, and found

1254Petitioner guilty of the charges relating to Mrs. Hajek and

1264Mrs. Holden. The Commissioner, therefore, adopted the Hearing

1272Officer's findings of fact and conclusions of law, and added

1282conclusions of law to support its findings. The Commissioner

1291ordered that Petitioner's license be revoked for a period of two

1302years.

130317. Petitioner appealed the Final Order, and the Fourth

1312District Court of Appeals upheld the Final Order of the DOI.

1323Johnson v. Department of Insurance , 595 So. 2d 56 (Fla. 4th DCA

13351992).

133618. Petitioner did not reapply for her insurance license

1345after the two-year revocation period ended.

135119. Petitioner also admitted that she was involved in a

1361case where she owed the Internal Revenue Service $125,000 for

1372failing to file joint tax returns with her former husband.

1382Petitioner claimed that the problem stemmed from her husband's

1391failure to disclose to her what was being done with the parties'

1403joint assets. Petitioner testified that she settled the matter

1412with the IRS and does not currently owe any penalty.

142220. Petitioner testified at the formal hearing that she

1431was charged with felony exploitation of the elderly concerning a

1441loan she received from Thelma Smith. She admitted that she pled

1452guilty to the charge and was sentenced for the crime.

1462Petitioner testified that she accepted the plea agreement based

1471upon her financial situation at the time and that Ms. Smith was

1483unable to testify at that time. Petitioner failed to provide

1493any witness or documentary evidence to support her explanation

1502of the charge at the formal hearing.

150921. Petitioner acknowledged that it took greater care and

1518time to work with her senior clientele than the average

1528individual while selling insurance. In selling real estate,

1536some of her clientele might be senior citizens, and she

1546understands that she may need to explain contracts and

1555information carefully to such individuals during a transaction.

156322. Petitioner has failed to present convincing evidence

1571to indicate that she is honest, trustworthy, of good character

1581and has a good reputation for fair dealing to meet the

1592requirements of Section 475.17, Florida Statutes.

1598CONCLUSIONS OF LAW

160123. The Division of Administrative Hearings has

1608jurisdiction over the parties and the subject matter of this

1618proceeding pursuant to Sections 129.569 and 120.57(1), Florida

1626Statutes.

162724. The FREC consists of seven members acting in its

1637quasi-judicial capacity, charged with the duty to regulate real

1646estate brokers, salespersons and real estate schools in the

1655interest of the public welfare. Sections 475.001 and 475.02,

1664Florida Statutes. The FREC is bound by the laws of the State of

1677Florida, in particular Section 20.165, Florida Statutes,

1684Chapters 120, 455, and 475, Florida Statutes, and the rules

1694promulgated pursuant thereto.

169725. Respondent's authority is derived from Chapters 475

1705and 455, Florida Statutes, and the rules promulgated thereto,

1714specifically, Chapter 61J2, Florida Administrative Code.

1720Respondent is authorized to represent the FREC in this matter

1730pursuant to Section 475.021, Florida Statutes.

173626. The burden of proof is on Petitioner, as the party

1747asserting the affirmative of the issue. Florida Department of

1756Transportation v. J.W.C. Company, Inc. , 396 So. 2d 778 (Fla. 1st

1767DCA 1981) ; Department of Banking and Finance, Division of

1776Securities and Investor Protection v. Osborne Stern and Co. , 670

1786So. 2d 932, 934 (Fla. 1996).

179227. A professional license is not a right, but a privilege

1803granted by the State. Borrego v. Agency for Health Care Admin . ,

1815675 So. 2d 666, 668 (Fla. 1st DCA 1996). The administrative

1826agency (in this case FREC) has "particularly broad discretion in

1836determining the fitness of applicants who seek to engage in an

1847occupation the conduct of which is a privilege rather than a

1858right." 670 So. 2d at 934 citing Osborne Stern & Co. v.

1870Department of Banking and Fin. , 647 So. 2d 245 (Fla. 1st DCA

18821994) (Booth, J., concurring and dissenting).

188828. "[L ]icensing statutes deal with the question whether a

1898person is qualified to receive the license in the first

1908instance, while the disciplinary statutes are penal in nature

1917and concern whether a license already granted should be

1926suspended or revoked . . . a mere applicant for a . . . license

1941has at best the hope of qualifying." Silver Show, Inc. v.

1952Department of Business and Professional Regulation , 763 So. 2d

1961348, 349 (Fla. 4th DCA 1998). Administrative agencies possess

1970discretion when determining whether an applicant should receive

1978a license, especially when the agency is regulating an

1987occupation which is deemed a privilege rather than a right.

1997Astral Liquors, Inc. v. Department of Business and Professional

2006Regulation , 463 So. 2d 1130, 1132 (Fla. 1985).

201429. The questions on the real estate application are

2023designed to aid FREC in deciding "whether or not [Petitioner]

2033possessed the necessary qualifications for registration, to-wit,

2040honesty, truthfulness, trustworthiness, and good character as

2047required by Section 475.17 . . . " Larson v. Florida Real Estate

2059Comm. , 227 So. 2d 886, 888 (Fla. 4th DCA 1969). See also Antel

2072v. Department of Business and Professional Regulation , 522 So.

20812d 1056 (Fla. 5th DCA 1988). The application process is

2091regulatory and the issue is whether the applicant "should . . .

2103be permitted to engage in the business of a real estate broker.

2115In such a situation, past irregular conduct may be considered."

2125Ahern v. Florida Real Estate Comm. , 6 So. 2d 857, 858 (Fla.

21371942).

213830. Rule 61J2-2.027(2), Florida Administrative Code,

2144describes the significance of the licensure application. It

2152says that "[t ]he applicant must make it possible to immediately

2163begin the inquiry as to whether the applicant is honest,

2173truthful, trustworthy, of good character, and bears a good

2182reputation for fair dealings, and will likely make transactions

2191and conduct negotiations with safety to investors and to those

2201with whom the applicant may undertake a relation of trust and

2212confidence."

221331. Section 475.17, Florida Statutes, provides in

2220pertinent part:

2222(1)(a ) An applicant for licensure who is

2230a natural person must . . . be honest,

2239truthful, trustworthy, and of good

2244character; and have a reputation for fair

2251dealing . . . must be competent and

2259qualified to make real estate transactions

2265and conduct negotiations therefor with

2270safety to investors and to those with whom

2278the applicant may undertake a relationship

2284of trust and confidence. If the applicant

2291has been denied registration or a license or

2299has been disbarred, or the applicant's

2305registration or license to practice or

2311conduct any regulated profession, business,

2316or vocation has been revoked or suspended,

2323by this or any other state . . . because of

2334any conduct or practices which would have

2341warranted a like result under this chapter,

2348or if the applicant has been guilty of

2356conduct or practices in this state or

2363elsewhere which would have been grounds for

2370revoking or suspending her or his license

2377under this chapter had the applicant then

2384been registered, the applicant shall be

2390deemed not to be qualified unless, because

2397of lapse of time and subsequent good conduct

2405and reputation, or other reason deemed

2411sufficient, it appears to the commission

2417that the interest of the public and

2424investors will not likely be endangered by

2431the granting of registration.

243532. Section 475.25(1), Florida Statutes, authorizes the

2442Florida Real Estate Commission to deny an application for

2451licensure if it finds that the applicant:

2458* * *

2461(f ) Has been convicted or found guilty

2469of, or entered a plea of nolo contendere to,

2478regardless of adjudication, a crime in any

2485jurisdiction which . . . involves moral

2492turpitude or fraudulent or dishonest

2497dealing. . . .

2501* * *

2504(s ) Has had a registration suspended,

2511revoked or otherwise acted against in any

2518jurisdiction. . . .

252233. In this case, the allegations of the Department of

2532Insurance Final Order issued against Petitioner involve conduct

2540or practices that would have warranted discipline under

2548Chapter 475, Florida Statutes, as referenced above. The charges

2557with the Department of Insurance are deemed to involve

2566fraudulent or dishonest dealing, breach of trust or culpable

2575negligence in any business transaction.

258034. The criminal charge would warrant discipline under

2588Section 475.25(1)(f), Florida Statutes, as it is a crime

2597involving moral turpitude or fraudulent or dishonest dealing.

2605See Pearl v. Florida Board of Real Estate , 394 So. 2d 189 (Fla.

26183rd DCA 1981).

262135. The Florida Supreme Court discussed moral turpitude in

2630the following terms:

2633Moral turpitude involves the idea of

2639inherent baseness or depravity in the

2645private social relations or duties owed by

2652man to man or by man to society. (Citations

2661omitted). It has also been defined as

2668anything done contrary to justice, honesty,

2674principle, or good morals, though it often

2681involves the question of intent as when

2688unintentionally committed through error or

2693judgment when wrong was not contemplated.

2699State ex. rel. Tullidge v. Hollingsworth , 146 So. 660, 661

2709(Fla. 1933).

271136. Petitioner has failed to prove that she is qualified

2721to take the examination for licensure as a real estate

2731salesperson, as required by Section 475.17, Florida Statutes.

2739Petitioner has failed to introduce sufficient evidence at the

2748formal hearing to establish evidence of good conduct or

2757reputation in order to overcome the presumption that the

2766interest of the public and investors will not likely be

2776endangered by the granting of registration. Section

2783475.17(1)(a), Florida Statutes.

2786RECOMMENDATION

2787Based upon the foregoing Findings of Facts and Conclusions

2796of Law, it is, therefore,

2801RECOMMENDED that the Florida Real Estate Commission issue a

2810final order denying Petitioner's application for licensure as a

2819real estate salesperson in the State of Florida.

2827DONE AND ENTERED this 18th day of September, 2001, in

2837Tallahassee, Leon County, Florida.

2841___________________________________

2842DANIEL M. KILBRIDE

2845Administrative Law Judge

2848Division of Administrative Hearings

2852The DeSoto Building

28551230 Apalachee Parkway

2858Tallahassee, Florida 32399-3060

2861(850) 488- 9675 SUNCOM 278-9675

2866Fax Filing (850) 921-6847

2870www.doah.state.fl.us

2871Filed with the Clerk of the

2877Division of Administrative Hearings

2881this 18th day of September, 2001.

2887COPIES FURNISHED :

2890Sunia Y. Marsh, Esquire

2894Department of Business and

2898Professional Regulation

2900400 West Robinson Street

2904Hurston Building, North Tower

2908Suite N308

2910Orlando, Florida 32801

2913Frederic Stanley, Jr., Esquire

2917Stanley, Dehlinger & Rascher

2921260 Maitland Avenue, Suite 1500

2926Altamonte Springs, Florida 32701

2930Buddy Johnson, Director

2933Division of Real Estate

2937Department of Business and

2941Professional Regulation

2943400 West Robinson Street

2947Post Office Box 1900

2951Orlando, Florida 32802-1900

2954Hardy L. Roberts, III, General Counsel

2960Department of Business and

2964Professional Regulation

2966Northwood Centre

29681940 North Monroe Street

2972Tallahassee, Florida 32399-2202

2975NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

2981All parties have the right to submit written exceptions within

299115 days from the date of this Recommended Order. Any exceptions

3002to this Recommended Order should be filed with the agency that

3013will issue the final order in this case.

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PDF
Date
Proceedings
PDF:
Date: 07/15/2004
Proceedings: Final Order filed.
PDF:
Date: 05/15/2002
Proceedings: Agency Final Order
PDF:
Date: 09/18/2001
Proceedings: Recommended Order
PDF:
Date: 09/18/2001
Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
PDF:
Date: 09/18/2001
Proceedings: Recommended Order issued (hearing held July 20, 2001) CASE CLOSED.
PDF:
Date: 09/14/2001
Proceedings: Proposed Recommended Order filed by Petitioner.
PDF:
Date: 09/12/2001
Proceedings: Proposed Recommended Order (filed by Petitioner via facsimile).
Date: 09/10/2001
Proceedings: Transcript filed.
PDF:
Date: 09/07/2001
Proceedings: Proposed Recommended Order (filed by Respondent via facsimile).
PDF:
Date: 08/14/2001
Proceedings: Order issued (parties shall file thier proposed recommended orders by September 7, 2001).
PDF:
Date: 08/10/2001
Proceedings: Motion for Extension of Time to File Proposed Recommended Order (filed by Respondent via facsimile).
Date: 07/30/2001
Proceedings: Case Law (filed via facsimile).
Date: 07/20/2001
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 07/13/2001
Proceedings: Petitioner`s Witness and Exhibit List filed.
PDF:
Date: 06/12/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for July 20, 2001; 9:00 a.m.; Viera, FL).
PDF:
Date: 06/07/2001
Proceedings: Petitioner`s Motion for Continuance filed.
PDF:
Date: 06/05/2001
Proceedings: Petitioner`s Motion for Continuance (filed via facsimile).
PDF:
Date: 04/27/2001
Proceedings: Letter to Clerk from F. Stanley, Jr (requesting continuance) filed.
PDF:
Date: 04/25/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for June 8, 2001; 9:30 a.m.; Viera, FL).
PDF:
Date: 04/24/2001
Proceedings: Letter to DOAH from F. Stanley (requesting answer regarding continuance of hearing) filed via facsimile.
PDF:
Date: 04/20/2001
Proceedings: Letter to DOAH from F. Stanley, Jr. (regarding notice of appearance) filed via facsimile.
PDF:
Date: 04/19/2001
Proceedings: Order issued (Respondent`s Motion for Extension of Time is granted).
PDF:
Date: 04/13/2001
Proceedings: Notice of Appearance as Substitute Counsel (filed by S. Marsh via facsimile).
PDF:
Date: 04/13/2001
Proceedings: Motion for Extension of Time to File Respondent`s Exhibits and Notice of Compliance with Order of Pre-Hearing Instructions (filed via facsimile).
PDF:
Date: 03/12/2001
Proceedings: Order Granting Continuance and Re-scheduling Hearing issued (hearing set for April 26, 2001; 9:00 a.m.; Viera, FL).
PDF:
Date: 03/06/2001
Proceedings: Notice of Acknowledgment for Continuance and to Reschedule Hearing (filed by Respondent via facsimile).
PDF:
Date: 03/01/2001
Proceedings: Letter to Judge Kilbride from E. Roberts In re: rescheduling hearing (filed via facsimile).
Date: 02/20/2001
Proceedings: Motion to Amend Notice of Administrative Action (filed by Petitioner via facsimile).
PDF:
Date: 01/29/2001
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 01/29/2001
Proceedings: Notice of Hearing issued (hearing set for March 15, 2001; 9:00 a.m.; Viera, FL).
PDF:
Date: 01/23/2001
Proceedings: Notice of Substitution of Counsel (filed by N. Campiglia via facsimile).
PDF:
Date: 01/23/2001
Proceedings: Joint Response to Initial Order (filed via facsimile).
PDF:
Date: 01/12/2001
Proceedings: Initial Order issued.
PDF:
Date: 01/11/2001
Proceedings: Request for Administrative Hearing, letter form filed.
PDF:
Date: 01/11/2001
Proceedings: Order filed.
PDF:
Date: 01/11/2001
Proceedings: Agency referral filed.

Case Information

Judge:
DANIEL M. KILBRIDE
Date Filed:
01/11/2001
Date Assignment:
07/16/2001
Last Docket Entry:
07/15/2004
Location:
Viera, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
 

Counsels

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