03-003500 Christopher Neita vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Thursday, December 4, 2003.

Summary: Applicant should not be permitted to sit for the Florida Real Estate Appraiser Trainee licensure examination because of his criminal history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTOPHER NEITA, )

)

Petitioner, )

)

vs. ) Case No. 03 - 3500

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on

November 7, 2003, by video teleconference at sites in Fort

Lauderdale and Tallahassee, Florida, before Administrative Law

Judge Claude B. Arrington of the Division of Administrative

Hearings.

APPE ARANCES

For Petitioner: Christopher Neita, pro se

19835 Northwest 10th Street

Pembroke Pines, Florida 33023

For Respondent: Juana Carstarphen Watkins, Esquire

Department of Bu siness and

Professional Regulations

400 West Robinson Street

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner's application to sit for the real estate

appraiser traine e licensure examination should be granted or

denied.

PRELIMINARY STATEMENT

On June 7, 2002, Petitioner submitted an application for

registration as a "registered real estate appraiser assistant." 1

A prerequisite to such registration is the successful com pletion

of a licensure examination. The application for registration in

this case was received and processed by Respondent on behalf of

the Florida Real Estate Appraisal Board (FREAB) as an

application to sit for the licensure examination. Petitioner

dis closed on the application form his prior criminal history.

Because of that criminal history, the FREAB denied Petitioner's

application. Petitioner thereafter requested a formal

administrative hearing, the matter was referred to Division of

Administrative Hearings, and this proceeding followed.

At the final hearing, Respondent presented its case first

to facilitate the presentation of evidence. Respondent offered

ten sequentially numbered exhibits, each of which was admitted

into evidence without object ions. After Respondent presented

its documentary evidence, Respondent rested its case without

calling any witnesses. Petitioner thereafter declined the

opportunity to testify, and he offered no other testimony and no

exhibits. Respondent presented an ar gument as to why his

application should be granted.

No transcript of the proceedings was filed. Respondent

filed a Proposed Recommended Order, which has been duly -

considered by the undersigned in the preparation of this

Recommended Order. Petitioner di d not submit a Proposed

Recommended Order.

FINDINGS OF FACT

1. Respondent is the agency of the State of Florida

responsible for regulating the practice of real estate

appraising in Florida pursuant to Part II of Chapter 475,

Florida Statutes (2003). 2 T he FREAB is a board created by

Section 475.613, Florida Statutes, and is responsible for

registering real estate appraiser trainees.

2. Petitioner applied for registration as a real estate

appraiser assistant by application dated June 7, 2002. Pursuant

to Section 475.616, Florida Statutes, the successful completion

of a licensure examination is a prerequisite to registration.

Petitioner's application has properly been treated as an

application to sit for the licensure examination that is a

prerequisite for registration as a real estate appraiser

trainee.

3. Petitioner disclosed by his answer to a question on the

application that he had entered a plea of nolo contendere to a

charge of grand theft in March 2000. Petitioner's disclosed

offense was a fe lony of the third degree.

4. At Respondent's request, Petitioner provided Respondent

details of the felony conviction by letter dated July 24, 2002.

That letter stated, in pertinent part, as follows:

I have been requested to provide details

of and an explanation for the felony

conviction disclosed on my application for

licensing as an appraiser.

I pleaded [sic] guilty in March 2000 in

the Circuit Court of Broward County,

Florida, to the Theft of Goods from Brands

Mart in South Florida; these offen ses were

committed jointly with an employee of Brands

Mart and involved an accounting fraud. I

have never been an employee of Brands Mart.

The Sentence [sic] was 5 years Probation

[sic], which I am told, will terminate in

September 2002 as there have be en no

breaches by me of my sentence and I intend

to apply for the early termination of the

sentence by September 2002.

All civil restitution I was ordered to pay

has been made to Brands Mart and all

criminal penalties have been paid in full

and all requi rements complied with. . . .

5. At its meeting held October 1, 2002, the FREAB

discussed Petitioner's application and the fact that he had been

convicted of a felony and when the conviction occurred.

Petitioner did not attend this meeting, but he did pr ovide the

FREAB letters of recommendation on his behalf and a copy of his

college diploma. The FREAB denied Petitioner's application

following a discussion of his criminal record. 3

6. The FREAB considered Petitioner's application for the

second time at its meeting of February 4, 2003. Petitioner

appeared at that meeting and answered questions from members of

the FREAB as to his criminal history. 4 The transcript of the

February 4 meeting reflects that Petitioner informed the FREAB

that he had stolen pr operty from a Brands Mart store with

assistance from an employee of the store. Petitioner received

merchandise from the store employee at a loading dock without

paying for the merchandise and later sold the merchandise.

Petitioner told the FREAB that he was sentenced to five years'

probation and ordered to pay restitution in the amount of

$20,000.00.

7. Petitioner also represented to the FREAB that he had

made full restitution as ordered by the court and that the court

had terminated his probation in N ovember 2002. Petitioner

represented that this was his first criminal offense and that he

had learned from his mistake. Petitioner said that he knew at

the time that he was wrong to commit the crime, but that he had

been out of work and committed the cri me to support his family.

8. The FREAB voted to deny Petitioner's application 5 at the

conclusion of the proceeding conducted February 4.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

case pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

10. Section 475.615(6), Florida Statutes, pertains to

qualifications for registration as a real estate appraiser

trainee and provides, in pertinent part, as follows:

(6) All applicants must be competent and

qualified to make real estate appraisals

with safety to those with whom they may

undertake a relationship of trust and

confidence and the general public. If . . .

the applicant has been guilty of conduct or

practices in this state or elsewhere which

would have been grounds for disciplining her

or his registration, license, or

certification under this part had the

applicant then been a registered trainee

appraiser or a licensed or certified

appraiser, the applicant sha ll be deemed not

to be qualified unless, because of lapse of

time and subsequent good conduct and

reputation, or other reason deemed

sufficient, it appears to the board that the

interest of the public is not likely to be

endangered by the granting of regis tration,

licensure, or certification.

11. Section 475.624, Florida Statutes, provides, in

pertinent part, as follows:

The [FREAB] may deny an application for

registration, licensure, or certification

. . . if it finds that the registered

trainee, lice nsee, or certificateholder:

* * *

(5) Has been convicted or found guilty

of, or entered a plea of nolo contendere to,

regardless of adjudication, a crime . . .

which involves moral turpitude or fraudulent

or dishonest conduct. . . .

12. Petitio ner has the burden of proving by a

preponderance of the evidence that his application for

registration as a real estate appraiser trainee should be

granted. See Department of Banking and Finance, Division of

Securities and Investor Protection v. Osborne S tern and Company ,

670 So. 2d 932 (Fla. 1996).

13. Grand theft is a crime that involves moral turpitude

and dishonest conduct within the meaning of Section 475.615(6),

Florida Statutes. Petitioner's burden required him to establish

as provided in Sectio n 475.615(6) that notwithstanding his

criminal history, the FREAB should conclude that the interest of

the public is not likely to be endangered by the granting of his

registration.

14. Petitioner failed to meet his burden of proof in this

proceeding. 6 The lapse between the commission of his crime and

his application was relatively brief and does not support his

argument for licensure. The only evidence that could arguably

go to Petitioner's reputation and subsequent good conduct were

the letters of rec ommendation he submitted to the FREAB prior to

its October meeting. Those letters cannot be the sole basis for

finding that granting Petitioner's application will not endanger

the public because the letters constitute hearsay evidence that

would not be ad missible over objection in a civil proceeding and

do not supplement or explain other evidence. See Section

120.57(1)(c), Florida Statutes, which provides for the limited

use of hearsay evidence in administrative proceedings as

follows:

(c) Hearsay evid ence may be used for the

purpose of supplementing or explaining other

evidence, but it shall not be sufficient in

itself to support a finding unless it would

be admissible over objection in civil

actions.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the FREAB enter a final order

denying Petitioner's application.

DONE AND ENTERED this 4th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRI NGTON

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

Divi sion of Administrative Hearings

this 4th day of December, 2003.

ENDNOTES

1/ Because of a revision to the pertinent legislation, the

correct terminology is now "registered real estate appraiser

trainee."

2/ Unless otherwise indicated, all statutory r eferences are to

Florida Statutes (2003).

3/ The transcript of the October 1 meeting reflects that at

least one member wanted to table Petitioner's application until

Petitioner could appear in person in front of the board to

explain his criminal record, but the board's counsel advised the

members that the only appropriate action was to vote to grant or

deny Petitioner's application.

4/ Respondent has described the proceeding on February 4 as

being an informal hearing.

5/ The members voting to deny t he application voiced concern as

to the nature of the crime, the fact that relatively little time

had passed since its occurrence, and the fact that Petitioner

had been on probation until November 2002. Those members were

also concerned that the duties of a real estate appraiser

trainee present opportunities for wrongdoing and require that

applicants be of good moral character. The FREAB invited

Petitioner to reapply for registration after additional time had

passed since the date of the crime and the ter mination of his

probation.

6/ Paragraph 21 of Respondent's Proposed Recommended Order is

as follows:

After the passage of further time and

(with) recent evidence of good character,

the FREAB would likely look more favorably

on Petitioner's applicati on, as suggested by

the FREAB at the February 4, 2003, informal

hearing.

COPIES FURNISHED :

Christopher Neita

19835 Northwest 10th Street

Pembroke Pines, Florida 33023

Juana Carstarphen Watkins, Esquire

Department of Business and

Professional Reg ulations

400 West Robinson Street

Orlando, Florida 32801

Jason Steele, Director

Division of Real Estate

Department of Business and

Professional Regulations

400 West Robinson Street

Orlando, Florida 32801

Nancy Campiglia, General Counsel

Department o f Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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 the agency that

will issue the Final Order in this case.