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.

Summary: Petitioner convicted of misdemeanor larceny, driving while impaired, and passing worthless checks, with last offense occurring in August 2000. Petitioner`s application for licensure as real estate salesperson should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. PARKER, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0558

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA REAL ESTATE COMMISSION, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDE R

Pursuant to notice, a formal hearing was held in this case

on April 10, 2002, by video teleconference, with the parties

appearing in Miami, Florida, before Patricia Hart Malono, a

duly - designated Administrative Law Judge of the Division of

Administrativ e Hearings, who presided in Tallahassee, Florida.

APPEARANCES

For Petitioner: Donna K. Ryan, Esquire

Department of Business and

Professional Regulation

Hurston North Tower

400 West Robinson Street, Suite N308

Orlando, Florida 32801 - 1772

For Respondent: Robert L. Parker, pro se

44 Douglas Drive

Boynton Beach, Florida 33435

STATEMENT OF TH E ISSUE

Whether the Petitioner's application for licensure as a

real estate salesperson should be granted or denied.

PRELIMINARY STATEMENT

In an Order entered November 27, 2001, the Florida Real

Estate Commission ("Commission") denied the application of

R obert L. Parker for licensure as a real estate salesperson.

The Commission stated in the Order that the application was

denied "based on the applicant's criminal record and answer to

Question #9." Mr. Parker timely requested an administrative

hearing, an d the Department of Business and Professional

Regulation, Division of Real Estate, transmitted the matter to

the Division of Administrative Hearings for assignment of an

administrative law judge. Pursuant to notice, the final hearing

was held on April 10, 2002.

At the hearing, Mr. Parker testified in his own behalf; he

did not offer any exhibits into evidence. The Commission did

not present the testimony of any witnesses, but Respondent's

Exhibits 1 through 6 were offered and received into evidence.

Offi cial recognition was accorded to Chapters 120, 455, and 475,

Florida Statutes, and to Rule Chapter 61J - 2.

The transcript of the proceedings was filed with the

Division of Administrative Hearings on April 23, 2002. Neither

party filed proposed findings of fact or conclusions of law.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The Commission operates within the Department of

Business and Professional Regulation and is the entity

responsible for certifying to the Department that an applicant

for licensure under Chapter 475 is qualified to practice as a

real estate broker or salesperson. Sections 475.02 and .181,

Florida Sta tutes (2001).

2. On or about June 12, 2001, Mr. Parker submitted his

application for licensure as a real estate salesperson to the

Commission.

3. In the application, Mr. Parker answered "yes" to

Question 9, which asks in pertinent part:

Have you ever bee n convicted of a crime,

found guilty, or entered a plea of guilty or

nolo contendere (no contest), even if

adjudication was withheld? . . .

If you answered "Yes," attach the full

details including dates and outcome,

including any sentence and conditions

i mposed, on a separate sheet of paper.

4. Mr. Parker attached to his application the results of a

North Carolina criminal records check, which consisted of a

cover sheet and three pages.

5. Relevant to this proceeding, the information attached

to Mr. Par ker's application establishes the following:

a. On May 26, 1994, Mr. Parker was found guilty of

misdemeanor larceny; there is no indication that he received a

sentence or paid a fine, court costs, or restitution.

b. On June 29, 1995, Mr. Parker was found guilty of

driving while impaired; he was sentenced to one year's

unsupervised probation and paid either a fine or court costs in

the amount of $160.00.

c. On July 8, 1996, Mr. Parker waived trial on a charge of

passing a worthless check; he paid either a fine or court costs

in the amount of $60.00 and restitution in the amount of $76.30.

d. On July 31, 1998, Mr. Parker was convicted of

misdemeanor larceny; he was sentenced to six month's

unsupervised probation and paid either a fine or court costs in

the amount of $130.00.

e. On June 12, 2000, Mr. Parker was found guilty of

violating a domestic violence protective order; he was sentenced

to six month's unsupervised probation and paid either a fine or

court costs in the amount of $186.00.

f. On August 6, 2000, Mr. Parker was charged with driving

while impaired and driving without a license in his possession;

trial was scheduled for February 21, 2001, but no disposition is

indicated in the materials Mr. Parker provided.

6. Mr. Parker admits to having driv en while impaired in

August 2000, but he has not been in trouble since his arrest on

this charge. He completed an alcohol treatment program and has

not consumed alcohol for one and one - half years.

7. Mr. Parker understands that he has had problems in the

past and believes that he has done better in the past two years.

He moved to Florida in January 2001 in order to make a new life.

At the time of the hearing, he was employed as a server at a

restaurant. In that job, he routinely handles up to $1,000.00

in cash each day and always turns the money over to management.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57( 1),

Florida Statutes (2001).

9. Because this case involves the denial of Mr. Parker's

application for licensure as a real estate salesperson, it is

his burden to prove by a preponderance of the evidence that he

meets the minimum requirements for licensure . See Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996).

10. Section 475.181(2), Florida Statutes (2001),

provides that the Commission "may refuse to certify an y

applicant who . . . is subject to discipline under s. 475.25."

11. Pursuant to Section 475.25(1)(f), Florida Statutes

(2001), the Commission may discipline a licensee or deny an

application for a real estate license if it finds that the

applicant "[h]as been convicted or found guilty of . . . a crime

in any jurisdiction which . . . involves moral turpitude or

fraudulent or dishonest dealing.

12. In Pearl v. Florida Board of Real Estate , 394 So. 2d

189, 191 (Fla. 3d DCA 1981), the court found "that moral

turpitude involves duties owed by man to society, as well as

acts 'contrary to justice, honesty, principle, or good morals,'"

and it held that "[c]rimes constituting violations of one's

duties in dealings with members of society may be classified as

crime s involving moral turpitude."

13. Based on the findings of fact herein, Mr. Parker has

admitted to having been found guilty of the crimes of

misdemeanor larceny, passing worthless checks, and driving while

impaired. These crimes involve moral turpitude a nd dishonesty,

and the Commission may, therefore, refuse to certify Mr. Parker

for licensure pursuant to Sections 475.181(2) and 475.25(1)(f),

Florida Statutes (2001).

14. However, the Commission's authority to deny an

application for licensure is discret ionary, as indicated by the

legislature's use of the word "may" in Sections 475.181(2) and

475.25(1), Florida Statutes (2001). Accordingly, Mr. Parker has

the opportunity to establish that he is entitled to licensure by

proving that he is "honest, truthfu l, trustworthy, and of good

character." Section 475.17(1)(a), Florida Statutes (2001).

15. Based on the findings of fact herein, Mr. Parker has

not proven by a preponderance of the evidence that he is

trustworthy or of good character given his arrest and apparent

conviction for driving while impaired in August 2000.

Mr. Parker is apparently turning his life around and, perhaps,

in time, he will be able to meet this burden of proving

entitlement to licensure as a real estate salesperson. Cf.

Antel v. Dep artment of Professional Regulation, Florida Real

Estate Commission , 522 So. 2d 1056 (Fla. 5th DCA 1988)(even

though applicant was convicted of crime involving moral

turpitude, applicant may be granted license if he proves

rehabilitation).

RECOMMENDATION

Ba sed on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Real Estate Commission

enter a final order denying the application of Robert L. Parker

for licensure as a real estate salesperson.

DONE AND ENTERED this 26th d ay of June, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Di vision of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of June, 2002.

COPIES FURNISHED:

Robert L. Parker

44 Douglas Drive

Boynton Beach, Florida 33435

Donna K. Ryan, Esquire

Department of Business and

Professional Regulation

Hurston North Tower

400 West Robinson Street, Suite N308

Orla ndo, Florida 32801 - 1772

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Dean Saunders, Chairperson

Florida Real Estate Commission

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802 - 1900

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 recommend ed order should be filed with the agency that

will issue the final order in this case.