03-003499 Luis Antonio Victoria vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Tuesday, December 30, 2003.

Summary: Real estate salesperson license application should be denied based upon applicant`s recent criminal record, pending criminal charges, and the applicant`s lack of candor related thereto.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUIS ANTONIO VICTORIA, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3499

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOM MENDED ORDER

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

on November 4, 2003, in Kissimmee, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petition er: Luis Antonio Victoria, pro se

3280 Fairfield Drive

Kissimmee, Florida 34743

For Respondent: Juana Carstarphen Watkins, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Rob inson Street, Suite N801

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue is whether Petitioner's application for a real

estate salesperson license should be granted.

PRELIMINARY STATEMENT

By Order dated April 16, 2003, the Florida Real Estate

Commission (Commission) denied Petitioner's application for a

real estate salesperson license. The Order, which was mailed to

Petitioner on April 28, 2003, informed Petitioner of his right

to an administrative hearing on the Commission's decision and

the procedure for requesting such a hearing.

On May 21, 2003, the Department of Business and

Professional Regulation, Division of Real Estate (Department),

received Petitioner's request for an administrative hearing on

the denial of his license application. On September 25, 2003,

the Department referred the matter to the Division of

Administrative Hearings (Division) for the assignment of an

Administrative Law Judge to conduct the hearing requested by

Petitioner.

The hearing was scheduled for and held on Nove mber 4, 2003.

At the hearing, Petitioner testified in his own behalf and also

presented the testimony of Sheila Almodovar. Petitioner did not

offer any exhibits into evidence. The Department did not

present any witnesses. The Department's Exhibits 1 th rough 7

were received into evidence.

At the hearing, the Department requested that the

undersigned take official recognition of Chapters 120, 455,

and 475, Florida Statutes (2001), and Florida Administrative

Code Rule Chapter 61J2, in their entirety. That request was

granted, but only as to the specific statutory and rule

provisions implicated in this case. The Department was directed

to file copies of those statutes and rules after the hearing,

which the Department did on November 7, 2003. 1

The one - vol ume Transcript of the hearing was filed with the

Division on December 2, 2003. The parties were given 10 days

from the date that the Transcript was filed to file their

proposed recommended orders (PROs). Respondent timely filed a

letter summarizing his p osition in this case on December 12,

2003, and the Department filed its PRO on December 15, 2003.

Those filings were given due consideration by the undersigned in

preparing this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence re ceived at the

hearing, the following findings are made:

1. Petitioner is 29 years old. He is currently selling

timeshare units at the Westgate Resort in the Orlando area. He

also works part - time as a pizza delivery person.

2. Petitioner is being paid on an hourly basis by

Westgate, since he does not hold a real estate salesperson

license. If he had a license, he could be paid on commission

and would have the potential to earn more money.

3. In April 2002, Petitioner completed a three - week long

"real estate school" and passed the related examination.

4. In June 2002, Petitioner filed with the Department an

application for a real estate salesperson license.

5. The Department and the Commission are the state

agencies responsible for licensing and regul ating real estate

professionals in Florida.

6. On the application, Petitioner answered "yes" to the

question as to whether he had been convicted of, found guilty

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

He listed the following of fenses: petty theft; trespassing;

false information; obstructing justice; and domestic battery.

7. Each of the offenses except for the domestic battery

occurred in Sarpy County, Nebraska, where Petitioner lived prior

to coming to Florida. The domestic b attery occurred in Osceola

County, Florida.

8. The petty theft offense occurred in 1994, when

Petitioner and a friend stole a street sign that bore one of

their names. Petitioner was 19 years old at the time. He paid

restitution of $150 for the street sign to resolve the charge.

9. The trespassing offense occurred in 1995 when

Petitioner and a friend were caught swimming in a public pool

after hours. Petitioner was 20 years old at the time. He paid

a $75 fine to resolve the charge.

10. The false i nformation offense occurred in 1996 when

Petitioner knowingly and intentionally lied to a police officer

regarding the identity of the friend who was riding in

Petitioner's car. The friend had a warrant and he asked

Petitioner to give the police officer a false name for him,

which Petitioner did. Petitioner was 21 years old at the time,

and he paid a $75 fine to resolve the charge.

11. The obstructing justice offense occurred in 1997 when

Petitioner was at a party and refused to open the door for the

po lice, who had been called to the party to investigate a sexual

assault. The party was not at Petitioner's home, and he was not

charged in connection with the sexual assault. Petitioner was

22 years old at the time, and he paid a $75 fine to resolve the

c harge.

12. The record does not include the arrest reports or

judgments related to the Nebraska offenses, which would detail

whether the offenses were felonies or misdemeanors and would

establish the precise legal dispositions of those cases.

However, Pe titioner's unrebutted testimony that he simply paid a

fine to resolve the charges against him suggests that the

offenses were misdemeanors and that Petitioner either pled

guilty or "no contest" ( i.e. , nolo contendere ).

13. The domestic battery offense oc curred in March 2001

and involved Petitioner's then - fiancée, Sheila Almodovar.

Ms. Almodovar is the mother of Petitioner's daughter, who was

born in October 1999.

14. The domestic battery offense stemmed from an argument

that Petitioner and Ms. Almodova r were having in their shared

apartment. Petitioner was arrested after the police were called

to the apartment by Ms. Almodovar, and they observed a bruise on

Ms. Almodovar's face. Ms. Almodovar told the police that the

bruise was caused by Petitioner.

15. At the hearing, Ms. Almodovar testified that she had

lied to the police regarding the source of the bruise. She

testified that Petitioner did not strike her, but instead only

"moved her out of the way" as he was leaving the apartment. She

further te stified that she caused the bruise to her own face by

hitting it against the wall in the bathroom after Petitioner

left the apartment and that Petitioner did not see her bang her

head.

16. Petitioner's testimony at the hearing regarding the

incident was v irtually identical to Ms. Almodovar's testimony,

but it is inconsistent in some respects with the sworn testimony

that he gave to the Commission in April 2003. At that time,

Petitioner testified that he actually saw Ms. Almodovar bang her

head against the wall in the bedroom.

17. After the domestic battery incident, Petitioner spent

the weekend in jail. He testified that he pled "no contest" to

the charge; that adjudication was withheld; and that he was

sentenced to probation, community service, and requ ired to take

domestic violence and anger management classes, all of which he

satisfactorily completed.

18. On July 19, 2002, Petitioner's license application was

"administratively denied" because of his criminal record, and he

was directed to appear befo re the Commission on August 21, 2002,

to answer questions regarding his application.

19. In advance of his appearance before the Commission,

Petitioner presented three letters of recommendation to the

Commission. The letters were from his father, Ms. Al modovar,

and Ms. Almodovar's sister. The letters praised Petitioner's

actions in taking care of his daughter and referred to his

"ambition" and "motivation" to succeed in the real estate

profession.

20. Petitioner attended the August 21, 2002, Commissio n

meeting as directed. The Commission gave Petitioner an

opportunity to explain the circumstances surrounding each of the

offenses listed on his application, which Petitioner attempted

to do. At the end of the meeting, the Commission voted to deny

Petiti oner's license application. The denial was memorialized

by the Commission in an Order dated August 29, 2002.

21. In September 2002, Petitioner was again arrested for

domestic battery involving Ms. Almodovar. According to

Petitioner, the incident occurr ed when he and Ms. Almodovar got

into an argument when Petitioner was picking up his daughter

from Ms. Almodovar. The police report from the incident was not

introduced into evidence, and the circumstances giving rise to

Petitioner's arrest are not entire ly clear from the testimony of

Ms. Almodovar and Petitioner at the hearing.

22. Petitioner testified that he spent 60 days in jail

after his arrest but that the charges against him were

ultimately "dropped." Ms. Almodovar testified at the hearing

that P etitioner "did not deserve" to be arrested for the

September 2002 incident because she had lied to the police

regarding what Petitioner had done. Petitioner testified that

Ms. Almodovar's sister, who was a witness to the confrontation,

was going to testif y for him if the case went to trial.

23. Ms. Almodovar blamed her actions towards Petitioner

and her lying to the police on her mental instability. She

testified that she has been diagnosed as being "bi - polar" and

that she is seeing a psychiatrist and i s on medication for her

mental instability.

24. On April 16, 2003, the Commission considered

Petitioner's license application in response to his request for

reconsideration of the August 2002 denial. Petitioner and his

father both addressed the Commissio n and responded to questions

from the Commission members. Again, Petitioner was given an

opportunity to explain the circumstances surrounding each of his

prior incidents.

25. There were several passing references to the second

incident of domestic batter y at the April 2003 Commission

meeting. However, it was clear from the transcript of that

meeting that the members of the Commission were confused

regarding the circumstances of each incident or were unaware

that there were two separate incidents. Petiti oner did nothing

to clarify the Commission's confusion and, indeed, actually

added to that confusion by discussing both incidents together

without distinguishing between them.

26. At the conclusion of the meeting, the Commission again

voted to deny Petiti oner's license application. That decision

was memorialized by the Commission in an Order dated April 16,

2003.

27. Thereafter, Petitioner timely filed his request for a

formal administrative hearing, which led to this proceeding.

28. In August 2003, Pe titioner was arrested for possession

of marijuana. The arrest report is not part of the record, but

Petitioner testified that he was charged only with a

misdemeanor.

29. Petitioner admitted at the hearing that marijuana was

found in his car, but he cla imed that it did not belong to him.

Instead, both Petitioner and Ms. Almodovar testified that the

marijuana belonged to Ms. Almodovar's sister, whom Petitioner

was living with at the time. Petitioner further testified that

Ms. Almodovar's sister "set him up" for the arrest as a means to

get him to leave the apartment that they shared.

30. Petitioner has a lawyer and is "fighting" the

possession of marijuana charge. The record does not reflect

where that case is in the judicial process.

31. The testimo ny given by Petitioner and Ms. Almodovar at

the hearing regarding the circumstances surrounding Petitioner's

recent offenses was not patently unbelievable, but it was not

overly persuasive either. For example, it is difficult to

square Petitioner's claim that he was "set up" on the possession

of marijuana charge by Ms. Almodovar's sister when she had

previously written a letter of recommendation for Petitioner in

which she characterized him as a "friend" and a "model citizen"

and that she was allegedly pre pared to testify for Petitioner in

connection with the September 2002 domestic violence incident.

32. At the time Petitioner filed his license application,

he was raising his daughter on his own because Ms. Almodovar was

unable to do so as a result of her mental instability.

Subsequently, Ms. Almodovar began receiving counseling and

taking medication which has allowed her to share custody of the

daughter with Petitioner. As a result, there is no

inconsistency between the statements on Petitioner's applic ation

and in the recommendation letters regarding his status as a

single parent and Petitioner's testimony before the Commission

in April 2003 that he had shared custody of his daughter.

CONCLUSIONS OF LAW

33. The Division has jurisdiction over the parti es to and

subject matter of this proceeding pursuant to Sections 120.569,

120.57(1), and 120.60, Florida Statutes (2003).

34. Petitioner has the burden to establish by a

preponderance of the evidence that he satisfies the criteria for

licensure as a real estate salesperson. See Dept. of Banking &

Finance v. Osborne, Stern & Co. , 670 So. 2d 932, 934 (Fla.

1996); Dept. of Transportation v. J.W.C. Co., Inc. , 396 So. 2d

778, 787 (Fla. 1st DCA 1981); § 120.57(1)(j), Fla. Stat. (2003).

35. Licensing agencies , such as the Department and the

Commission, have broad latitude in determining the fitness of

applicants for licensure. See , e.g. , Astral Liquors, Inc. v.

Dept. of Business Regulation , 463 So. 2d 1130, 1132 (Fla. 1985).

36. Section 475.181, Florida Sta tutes (2001), provides in

pertinent part:

(1) The department shall license any

applicant whom the commission certifies,

pursuant to subsection (2), to be qualified

to practice as a broker or salesperson.

(2) The commission shall certify for

licensur e any applicant who satisfies the

requirements of ss. 475.17, 475.175, and

475.180. The commission may refuse to

certify any applicant who has violated

any of the provisions of s. 475.42 or

who is subject to discipline under

s. 475.25. . . .

37. Sec tion 475.17(1)(a), Florida Statutes (2001),

requires an applicant for a real estate salesperson license to

be "honest, truthful, trustworthy, and of good character; and

have a good reputation for fair dealing." That statute further

provides that:

[I]f t he applicant has been guilty of

conduct or practices in this state or

elsewhere which would have been grounds for

revoking or suspending her or his license

under this chapter had the applicant then

been registered, the applicant shall be

deemed not to be q ualified unless, because

of lapse of time and subsequent good conduct

and reputation, or other reason deemed

sufficient, it appears to the commission

that the interest of the public and

investors will not likely be endangered by

the granting of registratio n. . . .

§ 475.17(1)(a), Fla. Stat. (2001). Accord Fla. Admin. Code R.

61J2 - 2.027(2) (requiring applicant to disclose prior criminal

convictions as part of Commission's inquiry "as to whether

the applicant is honest, truthful, trustworthy, of good

chara cter, . . . .").

38. The Commission may revoke or suspend a real estate

license where the licensee:

Has been convicted or found guilty of, or

entered a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which . . . involv es moral

turpitude or fraudulent or dishonest

dealing. . . .

§ 475.25(1)(f), Fla. Stat. (2001).

39. By virtue of his prior record, which includes crimes

involving moral turpitude and fraud, Petitioner is "deemed not

to be qualified" for licensure. See §§ 475.17(1)(a) and

475.25(1)(f), Fla. Stat. (2001). Although the "lapse of time"

since the offenses committed by Petitioner in Nebraska is not

insignificant, Petitioner has not demonstrated "subsequent good

conduct" since those offenses. See § 475.17(1) (a), Fla. Stat.

(2001). To the contrary, Petitioner has been arrested on three

separate occasions since March 2001.

40. Moreover, Petitioner failed to establish that he is

"honest, truthful, trustworthy, and of good character" as

required by Section 475. 17(1)(a), Florida Statutes (2001). In

this regard, although the evidence establishes that Petitioner

fully disclosed and explained his Nebraska criminal offenses on

the license application, he was less than forthright with the

Commission and the undersign ed about the recent offenses,

including the offenses which have occurred since the date of the

license application.

41. For example, Petitioner did not fully disclose or

explain the September 2002 domestic battery offense when he

appeared before the Com mission in April 2003. Nor did

Petitioner initially disclose that incident or the August 2003

possession of marijuana offense at the hearing in response to

the undersigned's specific question as to whether he had "been

in trouble with the law since [March 2001]." Indeed, it was not

until cross - examination that the September 2002 offense came to

light.

42. Petitioner's lack of forthrightness about the

existence of and circumstances surrounding his prior (and

current) offenses, whether intentional or not, goes to the

essence of the duties of a real estate professional to deal

honestly and fairly and to make full disclosures. See , e.g. ,

§§ 475.17(1)(a); 475.25(1)(f); 475.278(2)(a), (3)(a), (4)(a),

Fla. Stat. (2001).

43. Petitioner's pattern of behavior, p articularly his

multiple arrests for domestic battery since 2001 and his August

2003 arrest for possession of marijuana (which is still

pending), raises serious questions regarding Petitioner's "good

character" and the extent of his rehabilitation. See An tel v.

Dept. of Professional Reg. , 522 So. 2d 1056 (Fla. 5th DCA 1988)

(affirming denial of real estate license to applicant who was

still on parole).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Florida Real Estate Commission issue a

final order denying Petitioner's license application.

DONE AND ENTERED this 30th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrati ve 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 Administra tive Hearings

this 30th day of December, 2003.

ENDNOTE

1/ The Department filed copies of the following statutes and

rules: Sections 120.569, 120.57, 120.60, 455.213, 475.02,

475.05, 475.17, 475.25, Florida Statutes (2001); and Florida

Administrative Co de Rule Chapter 61J2 - 2.

COPIES FURNISHED :

Luis Antonio Victoria

3280 Fairfield Drive

Kissimmee, Florida 34743

Juana Carstarphen Watkins, Esquire

Department of Business and

Professional Regulation

Hurston Building, North Tower

400 West Robinson Stree t, Suite N801

Orlando, Florida 32801

Nancy Campiglia, General Counsel

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Jason Steele, Director

Division of Real Estate

Departme nt of Business

and Professional Regulation

400 West Robinson Street

Suite 802, North

Orlando, Florida 32801

Marie Powell, Chairman

Florida Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32308 - 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 Recommended Order should be filed with th e agency that

will issue the Final Order in this case.