02-000558
Robert L. Parker vs.
Department Of Business And Professional Regulation And Florida Real Estate Commission
Status: Closed
Recommended Order on Wednesday, June 26, 2002.
Recommended Order on Wednesday, June 26, 2002.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ROBERT L. PARKER, )
12)
13Petitioner, )
15)
16vs. ) Case No. 02 - 0558
23)
24DEPARTMENT OF BUSINESS AND )
29PROFESSIONAL REGULATION, )
32FLORIDA REAL ESTATE COMMISSION, )
37)
38Respondents. )
40_________________________________)
41RECOMMENDED ORDE R
44Pursuant to notice, a formal hearing was held in this case
55on April 10, 2002, by video teleconference, with the parties
65appearing in Miami, Florida, before Patricia Hart Malono, a
74duly - designated Administrative Law Judge of the Division of
84Administrativ e Hearings, who presided in Tallahassee, Florida.
92APPEARANCES
93For Petitioner: Donna K. Ryan, Esquire
99Department of Business and
103Professional Regulation
105Hurston North Tower
108400 West Robinson Street, Suite N308
114Orlando, Florida 32801 - 1772
119For Respondent: Robert L. Parker, pro se
12644 Douglas Drive
129Boynton Beach, Florida 33435
133STATEMENT OF TH E ISSUE
138Whether the Petitioner's application for licensure as a
146real estate salesperson should be granted or denied.
154PRELIMINARY STATEMENT
156In an Order entered November 27, 2001, the Florida Real
166Estate Commission ("Commission") denied the application of
175R obert L. Parker for licensure as a real estate salesperson.
186The Commission stated in the Order that the application was
196denied "based on the applicant's criminal record and answer to
206Question #9." Mr. Parker timely requested an administrative
214hearing, an d the Department of Business and Professional
223Regulation, Division of Real Estate, transmitted the matter to
232the Division of Administrative Hearings for assignment of an
241administrative law judge. Pursuant to notice, the final hearing
250was held on April 10, 2002.
256At the hearing, Mr. Parker testified in his own behalf; he
267did not offer any exhibits into evidence. The Commission did
277not present the testimony of any witnesses, but Respondent's
286Exhibits 1 through 6 were offered and received into evidence.
296Offi cial recognition was accorded to Chapters 120, 455, and 475,
307Florida Statutes, and to Rule Chapter 61J - 2.
316The transcript of the proceedings was filed with the
325Division of Administrative Hearings on April 23, 2002. Neither
334party filed proposed findings of fact or conclusions of law.
344FINDINGS OF FACT
347Based on the oral and documentary evidence presented at the
357final hearing and on the entire record of this proceeding, the
368following findings of fact are made:
3741. The Commission operates within the Department of
382Business and Professional Regulation and is the entity
390responsible for certifying to the Department that an applicant
399for licensure under Chapter 475 is qualified to practice as a
410real estate broker or salesperson. Sections 475.02 and .181,
419Florida Sta tutes (2001).
4232. On or about June 12, 2001, Mr. Parker submitted his
434application for licensure as a real estate salesperson to the
444Commission.
4453. In the application, Mr. Parker answered "yes" to
454Question 9, which asks in pertinent part:
461Have you ever bee n convicted of a crime,
470found guilty, or entered a plea of guilty or
479nolo contendere (no contest), even if
485adjudication was withheld? . . .
491If you answered "Yes," attach the full
498details including dates and outcome,
503including any sentence and conditions
508i mposed, on a separate sheet of paper.
5164. Mr. Parker attached to his application the results of a
527North Carolina criminal records check, which consisted of a
536cover sheet and three pages.
5415. Relevant to this proceeding, the information attached
549to Mr. Par ker's application establishes the following:
557a. On May 26, 1994, Mr. Parker was found guilty of
568misdemeanor larceny; there is no indication that he received a
578sentence or paid a fine, court costs, or restitution.
587b. On June 29, 1995, Mr. Parker was found guilty of
598driving while impaired; he was sentenced to one year's
607unsupervised probation and paid either a fine or court costs in
618the amount of $160.00.
622c. On July 8, 1996, Mr. Parker waived trial on a charge of
635passing a worthless check; he paid either a fine or court costs
647in the amount of $60.00 and restitution in the amount of $76.30.
659d. On July 31, 1998, Mr. Parker was convicted of
669misdemeanor larceny; he was sentenced to six month's
677unsupervised probation and paid either a fine or court costs in
688the amount of $130.00.
692e. On June 12, 2000, Mr. Parker was found guilty of
703violating a domestic violence protective order; he was sentenced
712to six month's unsupervised probation and paid either a fine or
723court costs in the amount of $186.00.
730f. On August 6, 2000, Mr. Parker was charged with driving
741while impaired and driving without a license in his possession;
751trial was scheduled for February 21, 2001, but no disposition is
762indicated in the materials Mr. Parker provided.
7696. Mr. Parker admits to having driv en while impaired in
780August 2000, but he has not been in trouble since his arrest on
793this charge. He completed an alcohol treatment program and has
803not consumed alcohol for one and one - half years.
8137. Mr. Parker understands that he has had problems in the
824past and believes that he has done better in the past two years.
837He moved to Florida in January 2001 in order to make a new life.
851At the time of the hearing, he was employed as a server at a
865restaurant. In that job, he routinely handles up to $1,000.00
876in cash each day and always turns the money over to management.
888CONCLUSIONS OF LAW
8918. The Division of Administrative Hearings has
898jurisdiction over the subject matter of this proceeding and of
908the parties thereto pursuant to Sections 120.569 and 120.57( 1),
918Florida Statutes (2001).
9219. Because this case involves the denial of Mr. Parker's
931application for licensure as a real estate salesperson, it is
941his burden to prove by a preponderance of the evidence that he
953meets the minimum requirements for licensure . See Department of
963Banking and Finance, Division of Securities and Investor
971Protection v. Osborne Stern and Co. , 670 So. 2d 932, 933 - 34
984(Fla. 1996).
98610. Section 475.181(2), Florida Statutes (2001),
992provides that the Commission "may refuse to certify an y
1002applicant who . . . is subject to discipline under s. 475.25."
101411. Pursuant to Section 475.25(1)(f), Florida Statutes
1021(2001), the Commission may discipline a licensee or deny an
1031application for a real estate license if it finds that the
1042applicant "[h]as been convicted or found guilty of . . . a crime
1055in any jurisdiction which . . . involves moral turpitude or
1066fraudulent or dishonest dealing.
107012. In Pearl v. Florida Board of Real Estate , 394 So. 2d
1082189, 191 (Fla. 3d DCA 1981), the court found "that moral
1093turpitude involves duties owed by man to society, as well as
1104acts 'contrary to justice, honesty, principle, or good morals,'"
1114and it held that "[c]rimes constituting violations of one's
1123duties in dealings with members of society may be classified as
1134crime s involving moral turpitude."
113913. Based on the findings of fact herein, Mr. Parker has
1150admitted to having been found guilty of the crimes of
1160misdemeanor larceny, passing worthless checks, and driving while
1168impaired. These crimes involve moral turpitude a nd dishonesty,
1177and the Commission may, therefore, refuse to certify Mr. Parker
1187for licensure pursuant to Sections 475.181(2) and 475.25(1)(f),
1195Florida Statutes (2001).
119814. However, the Commission's authority to deny an
1206application for licensure is discret ionary, as indicated by the
1216legislature's use of the word "may" in Sections 475.181(2) and
1226475.25(1), Florida Statutes (2001). Accordingly, Mr. Parker has
1234the opportunity to establish that he is entitled to licensure by
1245proving that he is "honest, truthfu l, trustworthy, and of good
1256character." Section 475.17(1)(a), Florida Statutes (2001).
126215. Based on the findings of fact herein, Mr. Parker has
1273not proven by a preponderance of the evidence that he is
1284trustworthy or of good character given his arrest and apparent
1294conviction for driving while impaired in August 2000.
1302Mr. Parker is apparently turning his life around and, perhaps,
1312in time, he will be able to meet this burden of proving
1324entitlement to licensure as a real estate salesperson. Cf.
1333Antel v. Dep artment of Professional Regulation, Florida Real
1342Estate Commission , 522 So. 2d 1056 (Fla. 5th DCA 1988)(even
1352though applicant was convicted of crime involving moral
1360turpitude, applicant may be granted license if he proves
1369rehabilitation).
1370RECOMMENDATION
1371Ba sed on the foregoing Findings of Fact and Conclusions of
1382Law, it is RECOMMENDED that the Florida Real Estate Commission
1392enter a final order denying the application of Robert L. Parker
1403for licensure as a real estate salesperson.
1410DONE AND ENTERED this 26th d ay of June, 2002, in
1421Tallahassee, Leon County, Florida.
1425___________________________________
1426PATRICIA HART MALONO
1429Administrative Law Judge
1432Di vision of Administrative Hearings
1437The DeSoto Building
14401230 Apalachee Parkway
1443Tallahassee, Florida 32399 - 3060
1448(850) 488 - 9675 SUNCOM 278 - 96 75
1457Fax Filing (850) 921 - 6847
1463www.doah.state.fl.us
1464Filed with the Clerk of the
1470Division of Administrative Hearings
1474this 26th day of June, 2002.
1480COPIES FURNISHED:
1482Robert L. Parker
148544 Douglas Drive
1488Boynton Beach, Florida 33435
1492Donna K. Ryan, Esquire
1496Department of Business and
1500Professional Regulation
1502Hurston North Tower
1505400 West Robinson Street, Suite N308
1511Orla ndo, Florida 32801 - 1772
1517Hardy L. Roberts, III, General Counsel
1523Department of Business and
1527Professional Regulation
1529Northwood Centre
15311940 North Monroe Street
1535Tallahassee, Florida 32399 - 2202
1540Dean Saunders, Chairperson
1543Florida Real Estate Commission
1547400 West Robinson Street
1551Post Office Box 1900
1555Orlando, Florida 32802 - 1900
1560NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1566All parties have the right to submit written exceptions within
157615 days from the date of this recommended order. Any exceptions
1587to this recommend ed order should be filed with the agency that
1599will issue the final order in this case.
- Date
- Proceedings
- PDF:
- Date: 06/26/2002
- Proceedings: Recommended Order issued (hearing held April 10, 2002) CASE CLOSED.
- PDF:
- Date: 06/26/2002
- Proceedings: Recommended Order cover letter identifying hearing record referred to the Agency sent out.
- Date: 04/10/2002
- Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
- PDF:
- Date: 04/02/2002
- Proceedings: Respondent`s Response to Order of Pre-Hearing Instructions filed.
Case Information
- Judge:
- PATRICIA M. HART
- Date Filed:
- 02/14/2002
- Date Assignment:
- 02/18/2002
- Last Docket Entry:
- 07/15/2004
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Robert L Parker
Address of Record -
Donna K Ryan, Esquire
Address of Record -
Donna K. Ryan, Esquire
Address of Record