02-000112 Curley Doltie vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Thursday, May 23, 2002.

Summary: Applicant with history of forgery and disbursement has not had sufficient time to complete rehabilitation and is not qualified to take examinations for real estate sales license.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURLEY DOLTIE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0112

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Administrative L aw Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on March 27, 2002, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Curley Doltie, pro se

6725 Tottenham Cour t

Orlando, Florida 32818

For Respondent: Donna K. Ryan, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, N308

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case i s whether Petitioner is qualified

to take the examination for licensure as a real estate sales

person.

PRELIMINARY STATEMENT

On or about April 17, 2001, Petitioner submitted an

application for licensure as a salesperson. Respondent

scheduled two informal hearings before the Florida Real Estate

Commission (FREC). FREC denied Petitioner's application after

each hearing, and Petitioner timely requested an administrative

hearing pursuant to Section 120.57(1), Florida Statutes (2001).

(All section references are to Florida Statutes (2001) unless

otherwise stated.) On January 7, 2002, FREC referred the matter

to DOAH to conduct an administrative hearing.

At the hearing, Petitioner testified in his own behalf.

Respondent did not call any witnesses. The AL J granted

Petitioner's request to submit two late - filed exhibits for

admission into evidence. Petitioner filed both late - filed

exhibits on April 4, 2002. Respondent submitted 11 exhibits for

admission into evidence. The identification of the exhibits,

and any attendant rulings, are set forth in the Transcript of

the hearing filed on April 25, 2002.

The ALJ granted Respondent's request to file the proposed

recommended orders (PROs) 15 days after the filing of the

Transcript. Respondent timely filed it s PRO on

May 2, 2002. Petitioner did not file a PRO.

FINDINGS OF FACT

1. Petitioner is an applicant for licensure as a real

estate salesperson. Respondent is the agency responsible for

regulating the practice of real estate in the state.

2. Petition er has a history of numerous criminal and

ethical violations. On March 9, 1999, Petitioner entered a plea

of no contest to two counts of Deposit[ing] with Intent to

Defraud. On March 24, 1999, the Leon County Circuit Court

withheld adjudication of guilt and ordered Petitioner to pay

restitution in the amount of $4,850.00 and to pay costs and

fines in the amount of $1,308.00. The court placed Petitioner

on probation for two years and ordered Petitioner to perform 100

hours of community service.

3. Peti tioner successfully completed the conditions of

probation. On March 1, 2001, the Florida Department of

Corrections terminated Petitioner's probation approximately

three weeks early.

4. On December 24, 1997, the Florida Supreme Court

suspended Petitioner 's license to practice law for 90 days. The

court found that Petitioner had committed misrepresentation

before an official tribunal. The order suspending Petitioner's

license does not disclose the facts and circumstances relied on

by the court.

5. On Ma rch 24, 1998, the Florida Supreme Court entered an

emergency suspension of Petitioner's license to practice law.

An audit of Petitioner's attorney trust account disclosed

shortages in the trust account each month for 31 months. The

monthly shortages vari ed in amount from $1,006.40 to $23,731.93.

Respondent received trust funds intended for payment of medical

costs for his clients, but never paid the vendors.

6. On January 30, 1999, the Florida Supreme Court accepted

Petitioner's resignation in lieu of disciplinary proceedings

with leave to reapply in five years. The five - year period

established by the court will expire in January, 2004.

7. In two separate informal hearings before FREC and in

the administrative hearing, Petitioner maintained that his past

criminal and ethical problems arose from a single isolated

incident related to the practice of law. However, the

preponderance of evidence shows that Petitioner's past problems

arose from more than a single isolated incident.

8. Petitioner experienc ed multiple criminal and ethical

problems between 1985 and 1998. The shortages in Petitioner's

trust account occurred at least 31 times between January 1,

1995, and July 31, 1997. At the time that the Florida Supreme

Court accepted Petitioner's resignati on of his license to

practice law, two other complaints from The Florida Bar and

Second Circuit Grievance Committee were pending. Six felony

warrants had been issued against Petitioner. Prior to the time

the court accepted Petitioner's resignation, the c ourt issued

two private reprimands to Petitioner on July 23, 1985, and

May 14, 1987; a 30 - day suspension and a one - year probation; and

the 90 - day suspension already discussed.

9. The testimony provided by Petitioner in the informal

hearings before FREC an d in the administrative hearing was

ambiguous and less than candid. At the June 20, 2001, FREC

meeting, a Commissioner asked Petitioner to explain the criminal

charges. Petitioner replied:

It involved depositing a check in the amount

of $4,000, actually cashing it on my

operating account and not being able to

account for the funds when my trust account

was being audited. The check was made

payable to a client, and I endorsed the

check and cashed the check on an operating

account.

At the October 17, 200 1, FREC meeting, a Commissioner asked

Petitioner to explain the criminal charges. Petitioner replied:

Sir, that was a situation where . . . I did

pay cash on an instrument, actually two

instruments against the account. Meaning

checks. Yes, sir. . . . In fact, when the

funds were not available in my trust

account, well – the long story of it is, in

fact, that our instruments were honored by

the bank upon which they were drawn. About

three months later[,] that bank[,] through

the banking laws and regula tions and how

things operated, decided to nullify honoring

the draft and, in fact, created a debt

against the operating account. I was unable

to replace the funds and subsequently it was

turned over to the Sheriff's office and the

Sheriff's officer did, i ndeed, obtain an

arrest warrant for deposit with intent to

defraud.

10. At the administrative hearing, Petitioner stated:

When you use the word, forged, I want to be

clear because you get into semantics. I

mean I have a Power of Attorney so to sign

that , to sign the back of the check.

Counsel for Respondent read a statement to Petitioner wherein

the victim stated that Petitioner did not have a power of

attorney. When counsel asked if Petitioner disagreed with the

statement, Petitioner replied, "No, I don't."

11. Petitioner did not sign his name to a check in

accordance with a valid power of attorney. Rather, Petitioner

twice forged the name of a person who was a creditor of

Petitioner's client as endorsements to two checks that

Petitioner's client h ad entrusted to Petitioner to deliver to

the creditor.

12. Petitioner represented Mr. Alfred Vangates.

Mr. Vangates owed money to Mr. Robert Dick. Mr. Vangates gave

Petitioner two checks to forward to Mr. Dick. Petitioner did

not forward the checks but forged Mr. Dick's signature and

cashed both checks. Petitioner did not have a power of attorney

for Mr. Dick. Mr. Dick completed forgery affidavits for the

forged signatures.

13. Petitioner stated in the administrative hearing that a

real estate sal esperson does not deposit funds to a real estate

escrow account. Petitioner stated that only a real estate

broker performs that function. Petitioner's statements fail to

recognize that purchasers entrust escrow checks to salespersons

for delivery to the broker in much the same spirit that

Mr. Vangates entrusted his checks to Petitioner for delivery to

the client's creditor.

14. The lack of candor in Petitioner's testimony reveals a

failure to recognize the truth of Petitioner's past and how it

relates to any future business as a real estate salesperson.

Rehabilitation is not complete before that recognition event.

15. Petitioner's testimony that he participates in church

and civic activities does not establish that Petitioner has

completed his rehabil itation. Nor are such activities, alone,

sufficient to establish his honesty, trustworthiness, good

character, or reputation for fair dealing. Petitioner engaged

in similar church and civic activities prior to his criminal and

ethical violations.

16. I nsufficient time has passed from Petitioner's

criminal offenses and ethical violations to provide an adequate

basis to support a finding that Petitioner is rehabilitated.

Petitioner failed to show an adequate basis to support a finding

that, if licensed, Petitioner will conduct himself appropriately

and will not endanger the interests of the public.

17. Nothing in the Findings of Fact precludes Petitioner

from reapplying to FREC prior to the expiration of the five - year

period prescribed by the Florida Su preme Court. If Petitioner

does reapply to FREC, Petitioner should be prepared to

adequately address one issue that Respondent withdrew from

consideration during the administrative hearing.

18. During the administrative hearing, Respondent

submitted evid ence of a 1991 judgment and two - year confinement

entered by the Superior Court in High Point, North Carolina, for

10 counts of forgery and uttering. The court entered the

judgment and confinement against Mr. Curtis Doltie who has the

same date of birth as Petitioner. Petitioner testified that

Mr. Curtis Doltie is Petitioner's twin brother but offered no

birth certificate or other documentary evidence to support that

testimony. Although the Federal Bureau of Investigation (FBI)

provided the records to Res pondent in response to Respondent's

inquiry regarding Petitioner, Respondent withdrew the records

from consideration by the ALJ. If Petitioner reapplies to FREC

and Respondent resubmits the FBI records, Petitioner should be

prepared to support his testimo ny concerning his twin brother

with documentary evidence.

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the parties and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57(1). DOAH provided the parties with adequate notice o f

the administrative hearing.

20. Petitioner has the burden of proof in this proceeding.

Astral Liquors, Inc. v. State, Department of Business

Regulation, Division of Alcoholic Beverages and Tobacco , 432 So.

2d 93, 95 (Fla. 3d DCA 1983); Florida Departme nt of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla.

1st DCA 1981); Balino v. Department of health and Rehabilitative

Services , 348 So. 2d 349 - 351 (Fla. 1st DCA 1977). Petitioner

must show by a preponderance of the evidence that he is

quali fied to take the examination for licensure as a real estate

salesperson. Department of Banking and Finance, Division of

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

So. 2d 932, 934 (Fla. 1996); Espinoza v. Department of Business

and Pr ofessional Regulation , 739 So. 2d 1250, 1251 (Fla. 3d DCA

1999). Petitioner failed to satisfy his burden of proof.

21. Section 475.25(1), in relevant part, authorizes FREC

to deny an application for licensure if 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 ac ted against in any

jurisdiction. . . .

22. Petitioner entered a plea of nolo contendere to a

crime in Florida that involves fraudulent or dishonest dealing

and had his attorney registration acted against within the

meaning of Section 475.25(1)(f) and (s) . Either matter would

warrant discipline against a licensee under Section 475.25(1)(f)

and (s).

23. Section 475.17 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 good 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 relations hip

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

revo king 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

sufficien t, it appears to the commission

that the interest of the public and

investors will not likely be endangered by

the granting of registration.

24. Petitioner failed to submit sufficient evidence to

overcome the rebuttable presumption in Section 475.17(1)( a) that

he is not qualified to take the examination for licensure as a

real estate sales person. The preponderance of evidence fails

to show that it is likely the interest of the public will not be

endangered by licensing Petitioner as a real estate sales

person. Similarly, the preponderance of evidence fails to show

that it is likely Petitioner will make transactions and conduct

negotiations with safety to those with whom Petitioner, as a

licensee, may undertake a relation of trust and confidence

within the meaning of Florida Administrative Code Rule 61J2 -

2.027(2).

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions

of Law, it is,

RECOMMENDED that FREC issue a final order denying

Petitioner's application for licensure as a real est ate

salesperson.

DONE AND ENTERED this 23rd day of May, 2002, in

Tallahassee, Leon County, Florida.

__________________________________

DANIEL MANRY

Administrative Law Judge

Division of AdministrativeHearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state. fl.us

Filed with the Clerk of the

Division of AdministrativeHearings

this 23rd day of May, 2002.

COPIES FURNISHED:

Curley Doltie

6725 Tottenham Court

Orlando, Florida 32818

La ura Rush, Esquire

Office of the State Courts Administrator

Florida Supreme Court Building

500 South Duval Street

Tallahassee, Florida 32399 - 6556

Donna K. Ryan, Esquire

Department of Business and

Professional Regulation

Hurston North Tower

400 West Robi nson Street, Suite N308

Orlando, 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

Jack Hisey, Deputy Division Direc tor

Division of Real Estate

Department of Business and

Professional Regulation

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 with in

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.