03-003498 Anthony Denicola vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Friday, March 5, 2004.

Summary: Peitioner did not present a preponderance of the evidence that he was fit to practice real estate because of his extensive criminal history and only a six-year interim.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANTHONY DENICOLA, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3498

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED O RDER

On December 11, 2003, Administrative Law Judge, Ella Jane

P. Davis, conducted a disputed - fact hearing via telephonic

conference among the cities of Tallahassee (the Administrative

Law Judge), Orlando (Respondent's counsel), and Fruitland Park

(Petiti oner), on behalf of the Division of Administrative

Hearings. The appearances were as follows:

APPEARANCES

For Petitioner: Anthony DeNicola, pro se

36730 Daisy Lane

Fruitland Park, Florida 34731

For Respondent: Juana Carstarphen Watkins, E squire

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Floria 32801

STATEMENT OF THE ISSUE

Whether Petitioner is qualified to take the examination for

licensure as a real estate sales associa te.

PRELIMINARY STATEMENT

Respondent Florida Real Estate Commission (FREC) is the

state agency responsible for regulating the practice of real

estate, pursuant to Chapter 475, Florida Statutes. On April 5,

2002, Petitioner submitted an application for licensure as a

real estate sales associate. Due to his answers which related

to criminal activity, FREC conducted an informal hearing on

July 17, 2002, and denied his application.

Petitioner reapplied, and on January 15, 2003, FREC

conducted a second in formal hearing regarding Petitioner's

application for registration for the real estate examination.

Petitioner appeared at this hearing and answered questions

regarding the circumstances surrounding his criminal history.

Once again, after the second hear ing, FREC denied Petitioner's

application.

Petitioner timely requested a formal disputed - fact hearing

before the Division of Administrative Hearings (DOAH), and the

case was referred to DOAH on or about September 25, 2003.

On December 11, 2003, the dis puted - fact hearing was

conducted by telephonic conference call. Petitioner testified

on his own behalf. He offered no exhibits. Respondent

presented no oral testimony. Respondent had eight exhibits

admitted in evidence. By arrangement for post - hearing filings,

official recognition was taken of relevant portions of

Chapters 20, 120, 144, and 475, Florida Statutes, and of Florida

Administrative Code Chapter 61J - 2.

A transcript was filed December 19, 2003.

The parties' respective Proposed Recommend ed Orders have

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an applicant for licensure as a real

estate sales associate. He was born November 23, 1970.

2. Respondent is the State agency in Florida respons ible

for regulating the practice of real estate, pursuant to

Chapter 475, Florida Statutes.

3. On April 5, 2002, Petitioner submitted an application

for licensure as a real estate sales associate.

4. In his application, Petitioner answered "yes" to

q uestion one of the application, which asks:

Have you ever been convicted of a crime, or

entered a plea of guilty or nolo contendere

(no contest), even if adjudication was

withheld? . . . If you answered "Yes",

attached the full details including dates

and outcomes, including any sentence and

conditions imposed, on a separate sheet of

paper.

5. Petitioner further disclosed on his application that in

1990, he had entered a guilty plea in Virginia to fraud, false

claim, stealing mail, larceny, signing a false statement, and

dereliction of duty. He further disclosed that these charges

had resulted in his incarceration.

6. Petitioner also disclosed that in 1994, he had entered

a plea to criminal sexual contact and endangering the welfare of

children and was again sentenced to incarceration.

7. On July 17, 2002, FREC conducted an informal hearing

regarding Petitioner's application for licensure and his past

crimes. Petitioner attended the hearing and submitted letters

attesting to his good character. FREC discussed the

circumstances surrounding Petitioner's application, including

the ages of the victims and the penalty the courts had imposed

and issued an order denying Petitioner's application.

8. Petitioner reapplied to FREC, and on or about

Janua ry 15, 2003, FREC conducted a second informal hearing

regarding Petitioner's application for registration and the

charges. Petitioner again appeared and answered questions

regarding the circumstances surrounding his criminal history,

specifically the ages of the victims and the theft of another

person's identity. Following the second hearing, FREC issued a

second order denying Petitioner's application.

9. Petitioner was entirely forthcoming in his answers on

each of his applications. He has made no att empt to hide his

past criminal history. However, his past criminal history is

formidable and reflects negatively on his reputation for truth,

veracity, and fair and honest dealing.

10. Petitioner has three felony convictions. These are

based on two inc idents of "crimes" which he admits to having

committed. He served time for both "crimes." He was released,

finally, only six years ago.

11. Petitioner's first incident of criminal behavior

occurred in 1990, when he was nineteen years old and serving in

the United States Air Force. Those charges involved larceny,

forgery, and impersonating a fellow member of the military. In

laymen's terms, Petitioner was charged with fraud, false claim,

and stealing mail. The result was that Petitioner was court -

mart ialed and sentenced to a dishonorable discharge from the

military. He also was sentenced to confinement for four years

at a reduced pay grade of E - 1. Because Petitioner had made

restitution prior to the actual court - martial in 1990, he was

not ordered to make restitution. He also was not dishonorably

discharged in 1990. Rather, he began serving four years of

incarceration in Ft. Leavenworth, Kansas.

12. Petitioner's offense in 1990, involved his breaking

into a mailbox to steal the leave and earning s statement and the

birth certificate of a fellow airman. With those documents,

Petitioner assumed the other airman's identity so as to get a

driver's license in his fellow airman's name. He then opened a

checking account in that fellow airman's name and wrote some bad

checks on the account which were not supported by any funds,

because Petitioner had put no money into the checking account.

13. Apparently, because the United States Air Force needed

Petitioner to play in a marching band, he was released o n parole

after serving only two years for his 1990 offenses. While he

was on parole, Petitioner was arrested for a second crime.

14. In 1994, while on parole from conviction for the first

set of offenses, Petitioner was involved in a criminal case

ba sed on sexual assault charges. The sexual assault charges

were dropped, but he was charged and convicted of endangering

the welfare of a minor and criminal sexual contact. He admitted

that sexual contact had, in fact, occurred when he got drunk and

went home from a bar with his girlfriend and her sister. He was

23 years old; his girlfriend was 17 years old; and the

girlfriend's sister was only 15 years old. Petitioner was

convicted and sentenced to three years of incarceration.

15. It appears from th e evidence as a whole that, due to

his conviction of the second crime in New Jersey, Petitioner's

parole for the first crime in Virginia was revoked and he served

the remainder of his sentence for the first crime and part of

his sentence for the second cri me concurrently.

16. Petitioner was released from incarceration in 1998,

upon completion of both his sentences. Thereafter, he had no

further parole or probation to serve.

17. In the hearings before FREC, Petitioner apparently

attributed some of his pa st problems with criminal activity to

his misuse of alcohol.

18. Since Petitioner's release six years ago, he has

started his own part - time computer web design company. Many of

his customers submitted letters of recommendation on his behalf.

These recom mendations include stating what a fine webmaster and

computer specialist he is and stating that his clients have

trust and confidence in his computer skills and his business

decisions and advice. His wife also has expressed confidence in

him through her l etter. They are starting a family.

Unfortunately, only one letter mentioned moral or ethical

considerations. None of the letters related specific personal

experiences with Petitioner's honesty, morality, or ethical

behavior over the entire course of tim e that the author had

known Petitioner. Likewise, not one of the letters of business

associates indicated that the author's opinion of Petitioner's

current good character was given with full knowledge of

Petitioner's prior criminal history.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause,

pursuant to Section 120.57(1), Florida Statutes.

20. Petitioner has the burden of proving by a

preponderance of the evidence that he meet s the requirements for

registration as a real estate sales associate, despite FREC's

denial of his application. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

21. Pursuant to Section 475.25(1), Florida Statutes, FREC

has the discretion to refuse to certify any applicant whose

conduct would have been grounds for discipline under Section

475.25(1)(f), Florida Statutes.

22. Additionally, Section 475.17(1)(a), Florida Statutes,

specifies that if an applicant has been guilty of conduct that

would have been grounds for discipline by FREC had the person

been a licensee at the time of the conduct, that person is

deemed not to be qualified unless, because of the laps e of time

and subsequent good conduct and reputation, the public is not

likely to be endangered by the granting of the registration.

23. Section 475.17(1)(f), Florida Statutes, allows FREC to

discipline an applicant if he or she has been found guilty o f,

or entered a plea of guilty or nolo contendere , to a crime of

fraud or dishonest conduct or crimes of moral turpitude.

24. Based on the facts of this case and Petitioner's

admissions, he has a serious record of fraudulent or dishonest

dealing, compo unded by an act which resulted in a criminal

charge involving moral turpitude. If, at the time the charges

were brought, Petitioner had been the holder of a Florida real

estate sales associate's license, his conduct would have been

grounds for discipline, and probably revocation.

25. Both Petitioner's crimes occurred while he was quite

young. He should be commended for admitting honestly to his

prior dishonest and immoral acts. However, those elements of

the case do not change the fact that he must b e held accountable

for his past criminal behavior.

26. Petitioner also should be commended for starting his

own profitable business. Likewise, marriage and a family are

clearly sobering and steadying life experiences. However, these

elements are not nec essarily predictors of future honesty and

fair - dealing in the business of real estate.

27. The facts that Petitioner's last offense occurred in

1994 and that he was only released from incarceration or other

obligations to the governing authority as of 1 998, are not

persuasive that his offenses occurred so long ago as to be of

negligible importance. Assuming the identity of another person

in order to commit fraud upon that person, one's creditors, and

one's bank is about as dishonest an act as can be ima gined.

Likewise, natural sympathy for Petitioner's youth at the time of

the second crime does not mitigate what he did. Sexual contact

of a 23 - year - old male with female minors clearly constituted a

crime of moral turpitude. In addition to being very ser ious

offenses which reflect directly and negatively on Petitioner's

character, these two types of past criminal activity do not give

the undersigned any confidence in Petitioner's common sense or

good judgment, each of which should be an element of the

pra ctice of real estate.

28. Most of the testimonial letters submitted do not

contain the combination of their authors' knowledge of the

Petitioner's prior bad acts, personal experience with his

current moral and ethical rehabilitation, and personal knowled ge

of his current reputation for truth, veracity, and good moral

character in his community, the combination of which are

necessary to persuade the undersigned of Petitioner's current

eligibility to sit for the licensing examination.

29. Petitioner has f ailed to meet his burden of proving by

a preponderance of the evidence that he meets the requirements

for licensure as a real estate sales associate, because he has

failed to demonstrate sufficient evidence of good conduct and

reputation or other reason ov er a sufficient lapse of time after

his crimes, to persuade that the interest of the public and

investors will not likely be endangered by the granting of the

registration.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Real Estate Commission enter a

Final Order denying Petitioner's application for licensure as a

real estate sales associate.

DONE AND ENTERED this 5th day of March, 2004, in

Tallahassee, Leon County, Florida.

S

____________ _______________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

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 Administrative Hearings

this 5th day of March 2004.

COPIES FURNISHED:

Anthony DeNicola

36730 Daisy Lane

Fruitland Park, Florida 34731

Juana Carstarphen Watkins, Esquire

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street

Orlando, Florida 32801

Nancy Campiglia, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2022

Jason Steele, Direct or

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802, North

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 day s 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.