08-001301 Eddy Gorrin vs. Florida Real Estate Appraisal Board Status: Closed Recommended Order on Friday, July 11, 2008.

Summary: Petitioner`s pleading guilty in 2003 to federal crime of "trafficking in counterfeit goods" did not provide the basis for denial of his application for registration as a trainee real estate appraiser where he showed he had been rehabilitated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDDY GORRIN, )

)

Petitioner, )

)

vs. ) Case No. 08-1301

)

FLORIDA REAL ESTATE APPRAISAL )

BOARD, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

May 8, 2008, by video teleconference at sites in Miami and

Tallahassee, Florida, before Stuart M. Lerner, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

1420 Celebration Boulevard, Suite 200

Celebration, Florida 34747

For Respondent: Michael A. Gross, Esquire

Assistant Attorney General

Office of the Attorney General

Administrative Law Bureau

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

STATEMENT OF THE ISSUE

Whether Petitioner's application for registration as a

trainee real estate appraiser should be denied on the ground set

forth in the Florida Real Estate Appraisal Board's Notice of

Intent to Deny.

PRELIMINARY STATEMENT

On or about August 20, 2007, the Florida Real Estate

Appraisal Board (Board) furnished Petitioner with a Notice of

Intent to Deny, advising him that it had preliminarily decided

to deny his application for registration as a trainee real

estate appraiser based on the following:

a. The applicant's application demonstrated

that pursuant to Section 455.227(1)(c),

Florida Statutes, and/or Section 475.624(5),

Florida Statutes, the applicant has been

convicted, found guilty of, or entered a

plea of nolo contendere to, regardless of

adjudication, a crime which directly relates

to the activities of a registered trainee

appraiser or licensed or certified

appraiser, or which involves moral turpitude

or fraudulent or dishonest conduct, to wit:

On or about May 22, 2003, the applicant pled

guilty to Trafficking in Counterfeit Goods,

in violation of 18 U.S.C. Section 2320.

b. The applicant's application fails to

demonstrate that pursuant to Section

475.615(6), Florida Statutes, sufficient

time has passed since the applicant's

conduct alleged . . . above, to demonstrate

to the Board that the interest of the public

is not likely to be endangered by the

granting of registration or certification.

The Board further advised Petitioner in its Notice of Intent to

Deny of his right to "seek review" of this decision and "request

a hearing" on the matter.

On September 10, 2007, Petitioner, through counsel, filed a

Petition for Formal Hearing, requesting that "the matter be

referred to the Division of Administrative Hearings to assign an

Administrative Law Judge to conduct a formal hearing."

On March 14, 2008, the case was referred to DOAH in accordance

with Petitioner's request.

As noted above, the hearing was held on May 8, 2008. Three

witnesses testified at the hearing: Patsy Stecco, Gaston

Gosselin, and Petitioner. In addition, two exhibits

(Respondent's Exhibit 1, a certified copy of Petitioner's

application file, and Respondent's Exhibit 2, Petitioner's

Answers to Respondent's First Set of Interrogatories to

Petitioner) were offered and received into evidence.

By order issued May 13, 2008, the deadline for the filing

of proposed recommended orders was set at ten days from the date

of the filing with DOAH of the hearing transcript.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on June 16, 2008.

On June 20, 2008, the Board filed an unopposed motion

requesting an extension of the deadline for filing proposed

recommended orders. The motion was granted and the proposed

recommended order filing deadline was extended to July 3, 2008.

Petitioner and Respondent timely filed their Proposed

Recommended Orders on July 3, 2008.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Petitioner is a 35-year-old divorced man (born in

October 1972) who resides in Miami-Dade County, Florida, with

his parents.

2. He is the father of a six-year-old son whom he shares

custody of with his former wife.

3. In early 2003 (when he was 30 years of age), fueled by

a desire to increase his wealth, Petitioner engaged in the

trafficking of counterfeit Procrit to drug wholesalers.

(Procrit is a prescription drug manufactured by Amgen, Inc.) In

so doing, Petitioner recklessly exposed the intended consumers

of these counterfeit drugs to the risk of serious bodily harm.

4. Prior to engaging in this criminal enterprise,

Petitioner had lived a law-abiding life.

5. Petitioner was arrested on or about February 28, 2003,

and subsequently charged in the United States District Court for

the Southern District of Florida with the federal crime of

trafficking in counterfeit goods in violation of 18 U.S.C. §

2320.

6. The information against Petitioner alleged, in

pertinent part, that, "[f]rom on or about January 20, 2003 to on

or about February 27, 2003, at Miami, Miami-Dade County, in the

Southern District of Florida, and elsewhere, the defendant, Eddy

Gorrin, did intentionally traffic and attempt to traffic in

goods, that is, Procrit prescription drugs, and knowingly used a

counterfeit mark on and in connection with such goods without

authorization from Amgen, Inc., such mark being identical with

and substantially indistinguishable from the genuine mark in use

and registered for those goods by Amgen, Inc. on the principal

register in the United States Patent and Trademark Office, and

the use of which counterfeit mark was likely to cause confusion,

to cause mistake, and to deceive."

7. With Petitioner's post-arrest assistance, the

authorities recovered all of the counterfeit Procrit that

Petitioner and his co-perpetrators had distributed.

8. On or about May 22, 2003, Petitioner entered into a

plea agreement with the federal prosecutor's office. The

agreement provided, in pertinent part, as follows:

1. The defendant agrees to waive

prosecution by indictment and plead guilty

to Count One of an Information, which

charges the defendant with intentionally

trafficking and attempting to traffic in

goods and knowingly using a counterfeit mark

on those goods in violation of Title 18,

United States Code, Sections 2320 and 2.

2. The defendant is aware that the sentence

will be imposed in conformity with the

Federal Sentencing Guidelines and Policy

Statement (hereinafter "Sentencing

Guidelines"), and that the applicable

guidelines will be determined by the Court.

The defendant is also aware that a sentence

imposed under the guidelines does not

provide for parole. Knowing these facts,

the defendant agrees that this Court has

jurisdiction and authority to impose any

sentence within the statutory maximum set

for his offense.

3. This Office and the defendant agree

that, although not binding on the Probation

Office or the Court, they will jointly

recommend that the Court make the following

findings and conclusions regarding the

applicable Sentencing Guidelines:

a. Applicable Offense Guideline : That

pursuant to Section 1B1.2(a) of the

Sentencing Guidelines, the offense guideline

applicable to the defendant's offense is

Section 2B5.3 of the Sentencing Guidelines,

which provides for a base offense level of

eight;

b. Amount of Loss : That under Sections

2B1.1(b)(1) and 1B1.3 of the Sentencing

Guidelines, the amount of loss resulting

from the defendant's offense conduct is

between $200,001 and $400,000, increasing

the defendant's offense level by twelve

levels.

c. Manufacture of Counterfeit Drug : That

under Section 2B5.3(b)(2) of the Sentencing

Guidelines, the defendant's offense involved

the manufacture of the counterfeit

prescription drug Procrit and that his

offense level should therefore be increased

by two levels.

d. Conscious or Reckless Risk of Serious

Bodily Injury : That under Section

2B5.3(b)(4) of the Sentencing Guidelines,

the defendant's offense involved the

conscious or reckless risk of serious bodily

harm, and that as a result, his offense

level should be increased by two levels.

e. Acceptance of Responsibility : That

under 3E1.1 of the Sentencing Guidelines,

the Sentencing Guideline level applicable to

the defendant's offense should be reduced by

three levels based upon his recognition and

affirmative and timely acceptance of

personal responsibility for the offense,

provided further that the defendant makes a

full, accurate and complete disclosure to

the United States Probation Office of the

circumstances surrounding defendant's

relevant conduct and does not engage in any

misconduct after entering into this

agreement . . . .

f. Other Adjustments : That no other

additional downward adjustments from

Chapters 2 or 3 of the Sentencing Guidelines

are applicable in this case.

g. Restitution and Fine : That pursuant to

Section 5E1.1(a) of the Sentencing

Guidelines, the defendant agrees that he

shall pay restitution in the amount of

$8,000 to the U.S. Food and Drug

Administration, which takes into account the

$25,000 voluntarily restituted in March

2003, prior to the filing of the information

in this case. It is also agreed that this

payment will be a condition of the

defendant's probation and/or supervised

release.

4. After a through review by the parties of

both the offense conduct and the application

of the Sentencing Guidelines to this offense

conduct as outlined in paragraph 3 of this

Agreement, this Office and the defendant

agree, pursuant to Rule 11(c)(1)(C) of the

Federal Rules of Criminal Procedure, that

the applicable total resulting offense level

in this case is an offense level 21. This

Office does not object to the defendant's

request to be sentenced at the low end of

the guideline range, that is, 37 months.

5. The defendant understands and agrees

that the Court may impose any sentence

authorized by law and that the defendant may

not withdraw his plea solely as a result of

the sentence imposed. The defendant also

understand and agrees that the Court may

impose a statutory maximum term of

imprisonment of up to ten years, followed by

a maximum supervised release term of three

years. In addition to a term of

imprisonment and supervised release, the

Court may impose a fine up to $2,000,000.

6. The defendant understands and agrees

that, in addition to any sentence imposed

under paragraph 5 of this agreement, a

special assessment in the amount of $100

will be imposed on the defendant. The

defendant agrees that any special assessment

imposed shall be paid at the time of

sentencing.

7. The defendant is aware that the sentence

has not yet been determined by the Court.

The defendant is also aware that any

estimate of the probable sentencing range

that he may receive from his counsel, the

government or the Probation Office, is a

prediction, not a promise, and is not

binding on the government, the Probation

Office or the Court.

* * *

9. After entering his plea of guilty, Petitioner was

sentenced to 37 months in federal prison. He was also fined and

ordered to pay restitution.

10. Petitioner began serving his prison sentence on

October 16, 2003.

11. While in prison, Petitioner took a correspondence

course in real estate appraising. He also participated in and

completed a nine-month alcohol rehabilitation program (for which

he was eligible because he had a history of alcohol abuse). As

a result of his completion of the program, his prison sentence

was shortened.

12. In March 2005, Petitioner was released from prison and

placed on supervised probation for a period of three years.

13. For the first six months of his probation, Petitioner

was under house arrest and had to wear a monitoring device on

his ankle.

14. Petitioner's probation officer recommended that he be

discharged early from probation inasmuch as he had "complied

with the rules and regulations of probation/supervised release

and [was] no longer in need of supervision." On November 22,

2006, the sentencing judge issued an order adopting this

recommendation and discharging Petitioner from probation.

15. Since his release from prison in March 2005,

Petitioner has led a crime-free life and become a productive

member of society.

16. He has abstained from the use of alcohol, with the

exception of having an occasional glass of wine.

17. He has gone back to school and completed the necessary

coursework to obtain his Associate of Arts degree from Miami-

Dade Community College.

18. He has been gainfully employed throughout the post-

incarceration period.

19. From March 2005, to April 2006, Petitioner worked for

two companies owned by Patsy Stecco: Mortgage Processors of

South Florida, Inc., where he helped process mortgages, work

that required him to handle money (which he did without

incident); and Buyers Home Connection, Inc., where he was a

credit analyst with managerial responsibilities. During this

time period, he took a "real estate mortgage broker course . . .

to get more of an understanding of what the work entail[ed]."

20. Ms. Stecco has known Petitioner for the past ten

years, 1 having first met him "through a niece of [hers who] was

friend[ly] with his ex-wife." 2 Ms. Stecco was aware of

Petitioner's criminal past when she hired him.

21. In April 2006, Petitioner went to work for a Florida-

certified residential appraiser, Gaston Gosselin, Jr.

22. Mr. Gosselin owns his own appraisal business,

Precision Appraisers and Company, Inc. He hired Petitioner

based upon Ms. Stecco's recommendation.

23. Before hiring Petitioner, Mr. Gosselin did not inquire

as to whether Petitioner had a criminal record, and Petitioner

did not volunteer that he did.

24. It was not until two or three months after Petitioner

began working for him that Mr. Gosselin found out (from Ms.

Stecco) about Petitioner's criminal past. When Mr. Gosselin

confronted Petitioner about the matter, Petitioner was candid

and forthright, and he apologized to Mr. Gosselin for not making

the disclosure sooner. While Mr. Gosselin was concerned about

Petitioner's "initial[]" lack of openness regarding the matter,

Petitioner had so impressed him during the "short time" they had

known each other that, despite this concern, Mr. Gosselin

retained Petitioner as an employee.

25. Petitioner did research and marketing work for

Mr. Gosselin. He also assisted with office personnel matters.

26. In February 2008, Mr. Gosselin had to let Petitioner

go because, due to deteriorating business conditions, he could

no longer afford to keep Petitioner on the payroll. He has

"stayed in touch" with Petitioner, however, and now "consider[s]

him a friend."

27. Ms. Stecco and Mr. Gosselin (both of whom testified,

credibly, at the final hearing on Petitioner's behalf 3 ) found

Petitioner to be a hardworking, quick-learning, reliable,

dedicated, competent, honest, and trustworthy employee.

28. Mr. Gosselin would not hesitate to serve as

Petitioner's supervising appraiser were Petitioner's application

for registration as a trainee real estate appraiser to be

granted. 4 He believes that Petitioner would be a "great asset to

[him] and [his] business."

29. Since February 2008, Petitioner has been a staffing

manager with Robert Half International (RHI).

30. RHI does not "know about [Petitioner's] criminal

history." It has not "inquire[d] [of Petitioner] about [his]

criminal past," and Petitioner has not come forward and made any

unsolicited disclosures regarding the matter.

31. In addition to working full-time for RHI, Petitioner

works evenings and weekends for his father's company, EDGO

General Consulting Services, Inc. (EDGO), which "owns rental

properties." Petitioner collects rents and makes deposits, as

well as does needed repair work, for the company.

32. Petitioner had worked for EDGO prior to his

incarceration. In 2001, he was "involved in overseeing" a

residential construction project undertaken by the company.

33. In applying for the staffing manager position he now

holds with RHI, Petitioner submitted a copy of a resume, wherein

he had listed, "oversee construction development of single

family spec homes," as one of his duties at EDGO. In so doing,

he meant to convey that "oversee[ing] construction development

of single family spec homes" was one of things that he had done

during his employment with EDGO, not that it was among his

current job duties.

34. The resume also contained the following entry

regarding his employment with Precision Appraisers and Company,

Inc. (under the heading of "Professional Experience"):

Precision Appraisers & Company, Inc., Office

Manager/Appraiser 04/2006-02/2008

- Establish productive marketing strategies

and incentives for existing and potential

clients.

- In charge of interviewing new prospective

personnel for clerical and administrative

positions.

- Research all records of properties being

appraised and provide all information to the

appraiser performing the appraisal.

- Organize bi-weekly payroll for staff and

independent contractors.

It was Petitioner's intent, in describing his position as

"Office Manager/Appraiser," to indicate that he was an "office

manager for an appraiser firm," not that he himself was an

appraiser.

35. Under the heading of "Education/Qualifications" on the

resume appeared the following:

Real Estate Appraiser

Real Estate Mortgage Broke[r]

Associates in Arts, Business Administration

Petitioner listed "Real Estate Appraiser" and "Real Estate

Mortgage Broke[r]" under this heading to indicate that he had

taken "Real Estate Appraiser" and "Real Estate Mortgage

Broke[r]" coursework. He did not mean to represent that he was

authorized to act as a "Real Estate Appraiser" and a "Real

Estate Mortgage Broke[r]."

36. While the resume entries discussed above were not

models of precision, neither were they intentionally deceptive.

37. Petitioner has become a more mature and responsible

person than he was at the time he engaged in the criminal

conduct that led to his incarceration. He is repentant and

remorseful about his crime and recognizes the importance of his

being a positive role model for his son. He understands all too

well what his ill-advised decision five years ago has cost him

and his family, particularly his son, who did not have a father

around during the time Petitioner was in prison. More

importantly, he feels "terribly" about the potential harm to

which he exposed the public and is "thankful that no one was

[actually] harmed."

38. Petitioner is embarrassed and ashamed of what he did

and is committed to not making the same mistake again in the

future and jeopardizing his freedom and ability to be with his

son and the rest of his family. He has "learned [a] lesson"

from the price he and his family has paid for his one criminal

indiscretion. He has no intention of ever "put[ing] [him]self

in a position like that again."

39. In short, in the five years that have passed since his

crime, Petitioner has been rehabilitated, and it appears that

the interest of the public will not likely be endangered if he

is granted the registration he seeks and is able to work as a

trainee real estate appraiser under the supervision of a

licensed or certified appraiser.

CONCLUSIONS OF LAW

40. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

41. Petitioner has applied to the Board to become a

registered trainee real estate appraiser in Florida.

42. Florida-registered trainee real estate appraisers may

"perform appraisal services only under the direct supervision of

see also § 475.6222, Fla. Stat. ("The primary or secondary

supervisory appraiser of a registered trainee appraiser shall

provide direct supervision and training to the registered trainee

appraiser."). "'Direct supervision' means the degree of

supervision required of a supervisory appraiser overseeing the

work of a registered trainee appraiser by which the supervisory

appraiser has control over and detailed professional knowledge of

the work being done. Direct supervision is achieved when a

registered trainee appraiser has regular direction, guidance, and

support from a supervisory appraiser who has the competencies as

determined by rule of the [B]oard." § 475.611(1)(k) Fla. Stat.

43. Florida Administrative Code Rule 61J1-4.010 is

entitled, "Supervision and Training of Registered Trainee

Appraisers." It provides as follows:

(1) All registered trainee appraisers shall

be subject to direct supervision by a

supervising appraiser who shall be state

licensed or certified in good standing.

(2) The supervising appraiser shall be

responsible for the training and direct

supervision of the appraiser trainee by:

(a) Accepting responsibility for the

appraisal report by signing and certifying

the report is in compliance with the Uniform

Standards of Professional Appraisal

Practice, as defined in Section

475.611(1)(o), F.S.;

(b) Reviewing the appraiser trainee

appraisal reports; and

(c) Personally inspecting each appraised

property with the appraiser trainee until

the trainee is competent in accordance with

the Competency Rule of the Uniform Standards

of Professional Appraisal Practice, as

defined in Section 475.611(1)(o), F.S.

(3) A registered trainee appraiser is

permitted to have more than one supervising

appraiser as specified in Section 475.6221,

F.S.

(4) Any supervising appraiser, whether

acting as primary or secondary supervisor,

may not supervise more than 3 registered

trainee appraisers at one time.

(5) When supervising any aspect of the

appraisal process, a supervising appraiser

shall train or supervise appraisers located

in:

(a) The county where the supervising

appraiser's primary business address is

located and registered with the Department;

and

(b) Any county contiguous to the county

where the supervising appraiser's primary

business address is located and registered

with the Department.

(6) Appraisal logs shall be maintained by

both the registered trainee appraiser and

the supervisory appraiser in a format

determined by the Department and shall, at a

minimum, include the following for each

appraisal:

(a) Type of property;

(b) Date of report;

(c) Address of appraised property;

(d) Description of work performed;

(e) Number of work hours; and

(f) Signature and state license

certification number of the supervising

appraiser.

(7) Separate appraisal logs shall be

maintained for each supervising appraiser

and signed by each supervising appraiser.

(8) A supervisory appraiser may not be

employed by a trainee or by a corporation,

partnership, firm, or group in which the

trainee has a controlling interest.

(9) A registered trainee appraiser may

accept appraisal assignments only from his

or her primary or secondary supervisory

appraiser.

(10) A registered trainee appraiser may

only receive compensation for appraisal

services from his or her authorized

certified or licensed appraiser.

44. Section 475.615, Florida Statutes, sets forth the

"qualifications for registration" as a trainee real estate

appraiser. Subsection (6) of the statute provides as follows:

All applicants must be competent and

qualified to make real estate appraisals

with safety to those with whom they may

undertake a relationship of trust and

confidence and the general public. If any

applicant has been denied registration,

licensure, or certification, or has been

disbarred, or the applicant's registration,

license, or certificate 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 part, or if the applicant has been

guilty of conduct or practices in this state

or elsewhere which would have been grounds

for disciplining her or his registration,

license, or certification under this part

had the applicant then been a registered

trainee appraiser or a licensed or certified

appraiser, 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 board that the

interest of the public is not likely to be

endangered by the granting of registration

or certification.

45. Furthermore, Section 475.624(5), Florida Statutes,

provides that the denial of an application for registration as a

trainee real estate appraiser may be based upon the applicant's

having been "convicted or found guilty of, or [having] entered a

plea of nolo contendere to, regardless of adjudication, a crime

in any jurisdiction which directly relates to the activities of

a registered trainee appraiser or licensed or certified

appraiser, or which involves moral turpitude or fraudulent or

dishonest conduct." See also § 455.227(1)(c), Fla. Stat., which

makes "[b]eing convicted or found guilty of, or entering a plea

of nolo contendere to, regardless of adjudication, a crime in

any jurisdiction which relates to the practice of, or the

ability to practice, a licensee's profession" a ground upon

which boards within the Department of Business and Professional

Regulation, such as the Board, may "[r]efus[e] to certify, or to

certify with restrictions, an application for a license.").

46. When presented with an application for registration as

a trainee real estate appraiser, the Board is required by

Section 120.60(3), Florida Statutes, to give the applicant

"written notice either personally or by mail that [it] intends

to grant or deny, or has granted or denied, the

application. . . . The notice must state with particularity the

grounds or basis for the issuance or denial of the

registration . . . ."

47. If the Board notifies an applicant that it intends to

deny the applicant's application and there are disputed issues

of material fact, the applicant is entitled, at his or her

request, to an evidentiary administrative hearing conducted

pursuant to Sections 120.569 and 120.57(1), Florida Statutes, on

such proposed action before the Board takes any final action on

the application. See Silver Show, Inc. v. Department of

Business and Professional Regulation, Division of Alcoholic

Beverages and Tobacco , 706 So. 2d 386, 389 (Fla. 4th DCA

1998)("[F]ormal hearings under sections 120.569 and 120.57 are

part of the application process--particularly, as here, where an

applicant seeks to contest facts relied on by the Division to

deny an application. . . . When a formal hearing has been

requested under sections 120.569 and 120.57, as here, the

definitive act of denial will not occur until the Division

enters a final order at the conclusion of the formal hearing.

That will happen only when the evidence has been heard, the

hearing officer has filed a recommended order, and the agency

has entered its final order. Anything before the entry of the

final order in contested license hearings is tentative and thus

merely proposed.").

48. The hearing is "a de novo proceeding intended to

formulate agency action, and not to review action taken earlier

or preliminarily." Beverly Enterprises-Florida, Inc. v.

Department of Health and Rehabilitative Services , 573 So. 2d 19,

23 (Fla. 1st DCA 1990). The applicant has the opportunity at

the hearing, through his or her presentation, to attempt to

persuade the Board to change its mind and issue a final order

granting the application for registration. See Capeletti

Brothers Inc. v. Department of General Services , 432 So. 2d

1359, 1363 (Fla. 1st DCA 1983)("Capeletti misconceives the

purpose of the [Section] 120.57 hearing. The rejection of bids

never became final agency action. As we have previously held,

APA hearing requirements are designed to give affected parties

an opportunity to change the agency's mind."); and Couch

Construction Company Inc. v. Department of Transportation , 361

So. 2d 172, 176 (Fla. 1st DCA 1978)("APA hearing requirements

are designed to give affected parties an opportunity to change

the agency's mind.").

49. Any final order denying the application for

registration must be based solely on the grounds asserted in the

notice of intent to deny given the applicant. See M. H. v.

Department of Children and Family Services , 977 So. 2d 755 (Fla.

2d DCA 2008)("[T]he notice's exclusive focus on 'significant

pulling force' as causing a nonaccidental injury precluded DCF

from urging negligence as an alternative ground for denying the

renewal of the license at the administrative proceeding.").

50. In the instant case, the Board, relying of Section

475.615(6), Florida Statutes, as well as "Section 455.227(1)(c),

Florida Statutes, and/or Section 475.624(5), Florida Statutes,"

preliminarily denied Petitioner's application for registration

based upon his having "pled guilty to Trafficking in Counterfeit

Goods, in violation of 18 U.S.C. Section 2320" and his failure,

in his application, to have demonstrated that "sufficient time

ha[d] passed since [his criminal] conduct . . . to demonstrate

to the Board that the interest of the public is not likely to be

endangered by the granting of registration."

51. Petitioner requested (and was granted) a hearing

conducted in accordance with Sections 120.569 and 120.57(1),

Florida Statutes, to challenge this preliminary determination.

52. The evidence adduced at the hearing indisputably

reveals (and Petitioner freely admits) that in 2003, in federal

district court, he pled guilty to participating in "trafficking

in counterfeit goods" during a one-month period earlier that

year.

53. "Trafficking in counterfeit goods" is a crime "which

involves moral turpitude or fraudulent or dishonest conduct,"

within the meaning of Section 475.624(5), Florida Statutes. Cf.

United States ex rel. Volpe v. Smith , 289 U.S. 422, 423

(1933)("In 1925 he pleaded guilty and was imprisoned under a

charge of counterfeiting obligations of the United States --

plainly a crime involving moral turpitude."); Tall v. Mukasey ,

517 F.3d 1115, 1117 (9th Cir. 2008)("Tall . . . petitions for

review of the Board of Immigration Appeals' summary affirmance

of the Immigration Judge's decision finding him inadmissible for

having been convicted of a crime of moral turpitude, namely

California Penal Code § 350(a), which punishes '[a]ny person who

willfully manufactures, intentionally sells, or knowingly

possesses for sale any counterfeit . . . mark.' Tall argues

that California Penal Code § 350(a) is not a crime involving

moral turpitude. We hold today that it is."); Department of

Business and Professional Regulation, Division of Real Estate v.

Lipman , No. 93-3843, 1994 Fla. Div. Adm. Hear. LEXIS 5321 *10

(Fla. DOAH April 21, 1994)(Recommended Order)("The crime of

conspiracy to counterfeit, by its nature, involves moral

turpitude and fraudulent or dishonest dealing."); and Department

of Business and Professional Regulation, Division of Real Estate

v. Rossmeyer , No. 90-3568, 1990 Fla. Div. Adm. Hear. LEXIS 6703

*8 (Fla. DOAH September 13, 1990)(Recommended Order)("Petitioner

established the allegations of Count II of the Administrative

Complaint and Respondent's violation of Section 475.25(1)(f),

Florida Statutes, by establishing that Respondent had been

convicted of the crime of counterfeiting, a crime involving

moral turpitude or fraudulent or dishonest dealing.").

54. Accordingly, in order to avoid a finding that, in

light of his guilty plea, he does not meet the qualifications

for registration as a trainee real estate appraiser set forth in

Section 475.615(6), Florida Statutes, and therefore his

application for such registration should be denied pursuant

Section 475.624(5), Florida Statutes, it was Petitioner's burden

to establish at hearing, by a preponderance of the evidence,

that, "because of lapse of time and subsequent good conduct and

reputation, or other reason deemed sufficient, . . . the

interest of the public is not likely to be endangered" by the

granting of his application. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 930 (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.");

Florida Department of Health and Rehabilitative Services v.

Career Service Commission , 289 So. 2d 412, 414 (Fla. 4th DCA

1974)("[T]he burden of proof is on the party asserting the

affirmative on an issue before an administrative tribunal. . . .

'As a general rule the comparative degree of proof by which a

case must be established is the same before an administrative

tribunal as in a judicial proceeding--that is, [a] preponderance

of the evidence. It is not satisfied by proof creating an

equipoise, but it does not require proof beyond a reasonable

doubt.'"); and Section 120.57(1)(j), Florida Statutes ("Findings

of fact shall be based upon a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by statute . . . .").

55. Petitioner met his burden of proof through the

presentation of his own credible testimony, as well as the

testimony of Ms. Stecco and Mr. Gosselin, which the undersigned

has also found to be worthy of belief. Cf. Falk v. Beard , 614

So. 2d 1086, 1089 (Fla. 1993)("It would be an anomalous

situation indeed if the testimony of the one against whom a

complaint is lodged could never form the basis for competent

substantial evidence."); Florida Publishing Company v. Copeland ,

89 So. 2d 18, 20 (Fla. 1956)("There is no doubt that the

testimony of the plaintiff, although uncorroborated, '. . . if

reasonable on its face, and believed and accepted by the jury as

true can carry the burden of proof.'"); Martuccio v. Department

of Professional Regulation, Board of Optometry , 622 So. 2d 607,

609-10 (Fla. 1st DCA 1993)(expert testimony of applicant for

licensure was not incompetent and could be relied upon "as

competent substantial evidence to support hearing officer's

conclusions" in proceeding in which applicant was a party);

Western Auto v. Moore , 567 So. 2d 972, 974 (Fla. 1st DCA

1990)("Th[e] burden [on the claimant to establish his or her

average weekly wage] can be met by the claimant's own testimony

so long as that testimony is competent, substantial, and

consistent with logic and reason."); and Raheb v. Di Battisto ,

483 So. 2d 475, 476 (Fla. 3d DCA 1986)("We are not persuaded, as

urged, that the testimony of the plaintiff Gordon Di Battisto

should have been rejected by the trial court as inherently

incredible."). Petitioner showed that, given how he has

conducted himself and changed his approach to life since his

criminal transgression five years ago, it appears that the

interest of the public would not likely be endangered by his

being granted the registration as a trainee real estate

appraiser for which he has applied. 5

56. Accordingly, that Petitioner, in 2003, engaged in and

pled guilty to the federal crime of "trafficking in counterfeit

goods" does not provide a basis to deny him registration as a

trainee real estate appraiser.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Board issue a Final Order granting

Petitioner's application for registration as a trainee real

estate appraiser.

DONE AND ENTERED this 11th day of July, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of July, 2008.

ENDNOTES

1 She has known Petitioner's father for an even longer period of

time," during which she has "helped him in real estate

transactions."

2 Ms. Stecco has "over the years" attended four or five social

(non-work-related) functions at which Petitioner was also

present, including a birthday party for Petitioner's son, but

she does not consider herself to be a "personal friend" of

Petitioner's.

3 In evaluating the credibility of Ms. Stecco's and

Mr. Gosselin's testimony, the undersigned has taken into

consideration the relationship each of these witnesses had with

Petitioner and his family.

4 Mr. Gosselin testified that he would "take [Petitioner] back

in a heartbeat."

5 As a registered trainee real estate appraiser, Petitioner

would not be unsupervised. He would be "under the direct

supervision of a licensed or certified appraiser." §§

475.611(1)(n) and 475.6222, Fla. Stat.

COPIES FURNISHED :

Daniel Villazon, Esquire

1420 Celebration Boulevard

Celebration, Florida 34747

Michael A. Gross, Esquire

Office of the Attorney General

Administrative Law Bureau

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Frank K. Gregoire, Chairman

Florida Real Estate Appraisal Board

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801, North

Orlando, Florida 32802-1900

Thomas W. O'Bryant, Jr., Director

Division of Real Estate

400 West Robinson Street, Suite 802, North

Orlando, Florida 32801

Ned Luczynski, 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.