04-000390 Ralph D. Jones, Jr. vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Wednesday, April 28, 2004.

Summary: The Petitioner, who had six felony convictions, showed good behavior and work for five years. The issue is one of Agency discretion. Recommend: permit the Petitioner to sit for exam and, if he passes, license him with significant restrictions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. JONES, JR., )

)

Petitioner, )

)

vs. ) Case No. 04-0390

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice, on March 29, 2004, by

Stephen F. Dean, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Ralph D. Jones, Jr., pro se

781 Begonia Street

Atlantic Beach, Florida 32233

For Respondent: Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, N801

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether Petitioner is qualified to take the examination for

licensure as a registered assistant rental estate appraiser.

PRELIMINARY STATEMENT

On or about May 14, 2003, Ralph D. Jones, Jr. (Petitioner)

submitted an application for licensure as registered assistant

real estate appraiser to the Department of Business and

Professional Regulation, Division of Real Estate (Respondent), on

behalf of the Florida Real Estate Appraisal Board (FREAB).

Because of an affirmative answer to the question regarding

criminal history, Respondent scheduled Petitioner for a hearing

before the FREAB on October 7, 2003, and again on December 3,

2003. The FREAB denied Petitioner's application following both

hearings. Petitioner timely requested a formal hearing and

Respondent referred the matter to the Division of Administrative

Hearings (DOAH).

On March 29, 2004, a formal hearing was conducted on the

matter. The parties stipulated that Petitioner submitted an

application for licensure that was facially complete, except for

the matter of disqualifying criminal record.

Official recognition of the relevant sections of Chapters

20, 120, 455, and 475, Florida Statutes, and Florida

Administrative Code Rule 61J-2, as filed by the Respondent, was

taken and oral notice provided to the parties. Petitioner

testified. Respondent did not present witness testimony.

Petitioner submitted four documents without objection from the

Respondent as Joint Exhibits 1-4. Respondent's Exhibits numbered

1 through 9 were received into evidence.

The Transcript was filed on April 1, 2004. Respondent filed

proposed findings that were read and considered. Petitioner did

not make a post-hearing filing.

FINDINGS OF FACT

1. Respondent is a state agency in Florida responsible for

regulating the practice of real estate in Florida pursuant to

Sections 475.001 and 475.05, Florida Statutes.

2. On or about May 14, 2003, Petitioner, Ralph D. Jones,

Jr., submitted an application for registration as an assistant

real estate appraiser.

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

question on the application regarding criminal history indicating

Petitioner had a criminal history.

4. Petitioner disclosed on the application that he had in

Virginia two larceny charges, a concealment charge, a driving

while license suspended charge, a hit and run charge, three

assault charges and an obstruction of law enforcement charge: a

total of six felony convictions.

5. On or about October 7, 2004, the FREAB conducted an

informal hearing regarding Petitioner's application for licensure

and the aforementioned crimes. Petitioner attended the hearing

and submitted letters attesting to his good character for the

FREAB's consideration. The FREAB issued an order denying

Petitioner's application.

6. On or about December 2, 2003, the FREAB conducted a

second informal hearing regarding Petitioner's application for

registration and his criminal record.

7. Petitioner appeared at this hearing and was questioned

by the FREAB about the circumstances surrounding Petitioner's

criminal history.

8. At the formal hearing, Petitioner testified about the

circumstances of his criminal history, with an emphasis on the

length of time since his last criminal conviction, and the type

of offenses committed by applicants that were approved by the

FREAB. He pointed out that it had been over five years since he

had been in trouble. It is noted that it had been an even longer

time between Petitioner's most recent problems, arising from the

breakup of his marriage, and his prior convictions. It is noted

that his most recent offenses related to his divorce five years

ago.

9. Petitioner has not had his civil rights restored.

10. Petitioner wants to work on his "apprenticeship," so he

can become a registered appraiser. Following the hearing, the

FREAB issued an order denying the Petitioner's application for a

second time.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

12. This is a de novo proceeding in which Petitioner has

the burden of proving by a preponderance of the evidence that he

meets the requirements for registration as a real estate

appraiser trainee, despite the FREAB's denial of his application.

See Department of Banking and Finance, Division of Securities and

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

(Fla. 1996).

13. Pursuant to Section 475.624, Florida Statutes, the

FREAB has the discretion to refuse to certify any applicant whose

conduct would have been grounds for discipline under Section

475.624(5), Florida Statutes.

14. Section 475.615(6), Florida Statutes, specifies that if

an applicant has been found guilty of conduct that would have

been grounds for discipline by the FREAB, had the person been a

registrant at the time of the conduct, that person is deemed not

to be qualified, unless because of the lapse of time and

subsequent good conduct and reputation, the public is not likely

to be endangered by the granting of the registration.

15. Section 475.624(5), Florida Statutes, allows the FREAB

to discipline an applicant if the person has been found guilty of

or entered a plea of nolo contendere to a crime involving moral

turpitude or dishonest conduct.

16. Based on the facts of this case, Petitioner had

admitted to committing crimes that constitute a felony in Florida

law, including grand larceny. Petitioner admits to leaving the

scene of an accident in which another person was injured because

his driver's license was suspended as a habitual traffic offender

at the time of the collision. Petitioner admits that he has lost

his civil rights as a result of his offenses.

17. Petitioner has an extensive criminal record which is

facially disqualifying for licensure as an assistant appraiser.

Petitioner presented evidence of subsequent good behavior or good

reputation for the last five years. A large number of the

offenses Petitioner committed were when he was very young. His

most recent offenses arose from or out of marital problems.

However, Petitioner civil rights have not been restored and he

previously had extended periods in which he did not break the

law. Petitioner explained that the reference in his records to

being a habitual offender related to driving offenses not being

found to be a habitual felon.

18. Notwithstanding Petitioner's explanation and the five

years since his last problems with the law, the determination is

not whether Petitioner is qualified. He is disqualified. He

seeks a discretionary issuance of a license by Respondent "on

waivers" based on the passage of time and current good conduct.

The passage of five years is a long time; however, Respondent's

period of wrong-doing was extensive. The most recent criminal

conduct related to marital discord. However, it involved a

confrontation with a uniformed officer.

19. The grant of a "waiver" in these circumstances is one

of the most discretionary of the Board's actions. The members of

the Board know better the situations that will arise and whether

Petitioner's background constitutes a risk. They also know what

limits, such as longer apprenticeships or probation, could be

imposed to ensure adequate oversight while assessing further

Petitioner's character and letting him proceed with his current

good record.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That Respondent permit Petitioner to take the examination,

and if Petitioner passes the examination, that Respondent issue a

license to Petitioner conditioned on the following:

1. Restoration of his civil rights by the Virginia

authorities;

2. Practice under the direction of a licensee designated by

Respondent with periodic reports on Petitioner's professional

conduct for a period of 24 months; and

3. Automatic revocation of Petitioner's license upon the

commission of any offense constituting a misdemeanor or felony in

Florida Law or any violation of Chapter 475, Florida Statutes.

DONE AND ENTERED this 28th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

__

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of April, 2004.

COPIES FURNISHED:

Ralph D. Jones, Jr.

781 Begonia Street

Atlantic Beach, Florida 32233

Jason W. Holtz, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, N801

Orlando, Florida 32801

Nancy Campiglia, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Frank Gregoire, Chairman

Real Estate Appraisal Board

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 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.