04-001631 Fernando Freire vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Friday, August 20, 2004.

Summary: Criminal offenses sufficient to prevent licensure as real estate salesperson at this time.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FERNANDO FREIRE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1631

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

On June 25, 2004, an administrative hearing in this case

was held by videoconference between Tallahassee and Orlando,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petition er: Fernando Freire, pro se

5242 Millenia Boulevard, No. 304

Orlando, Florida 32839

For Respondent: Alfonso Santana, Esquire

Division of Real Estate

Department of Business

and Professional Regulation

400 West Robinson Street, 801N

Orlando, Florida 32801 - 1757

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner should be

permitted to take the examination fo r licensure as a real estate

sales associate.

PRELIMINARY STATEMENT

By Orders dated December 19, 2003, and March 25, 2004, the

Florida Real Estate Commission (Commission) denied the

application of Fernando Freire (Petitioner) for licensure as a

real estate sales associate. The Order dated December 16, 2003,

states that the denial is "based on the applicant's criminal

record and answer to the question regarding convictions." The

Order dated March 25, 2004, states that the denial is "based on

the applicant' s record and answer to the question regarding

convictions and a professional license disciplined."

The Petitioner requested an administrative hearing to

address the application. The Department of Business and

Professional Regulation (Respondent) forwarded the request for

hearing to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner testified on his own behalf

and presented the testimony of one witness. The Respondent had

Exhibits numbere d 1 through 11 admitted into evidence. The

one - volume Transcript of the hearing was filed on July 19, 2004.

The Respondent filed a Proposed Recommended Order on July 27,

2004. On July 30, 2004, the Petitioner filed a letter asking

that he be permitted to take the state real estate examination.

FINDINGS OF FACT

1. In September 2003, the Petitioner filed an application

for licensure by the State of Florida as a real estate sales

associate.

2. In an application section titled "Background

Informatio n" question 1 asks in relevant part, "[h]ave you ever

been convicted of a crime, found guilty, or entered a plea of

guilty or nolo contendere . . ." to which the Petitioner

responded in the affirmative. "Background Information"

question 4 in relevant part asks, "[h]as any license,

registration, or permit to practice any regulated profession,

occupation, vocation, or business been revoked, annulled,

suspended, relinquished, surrendered, or withdrawn . . ." to

which the Respondent replied in the affirmative.

3. Question 1 directs an applicant who responds in the

affirmative to disclose the full details of the incident(s) by

completion of "form 0050 - 1." Question 4 directs an applicant

who responds in the affirmative to disclose the full details of

the term ination(s) by completion of "form 0060 - 1." The

disclosure forms completed by the Petitioner (if any) are not in

the Respondent's files and are unavailable for review.

4. The Petitioner's application package was presented to

the Commission on December 1 6, 2003. After considering his

presentation, the Commission denied his application and

instructed him to return with additional information related to

the disclosed charges.

5. The Petitioner apparently sought reconsideration, and

his application packa ge was again presented to the Commission on

March 17, 2004. After reconsidering the Petitioner's

background, the Commission again denied his application. The

Petitioner then sought an administrative hearing to challenge

the denial of his application.

6 . On or about July 26, 2000, the Petitioner was arrested

and charged with stalking. The Commission's records indicate

that the Petitioner completed a pretrial program and was

sentenced to 50 hours of community service. At the

administrative hearing, the Petitioner testified that he was

placed on probation for six months, and had to complete a six -

month psychological evaluation. The stalking charge was nolle

prossed .

7. At the hearing, the Petitioner stated that at the time

of the stalking charge, he was working at a retail

establishment. The object of his attention was a 16 - year - old

female who was working in the vicinity. The Petitioner was

approximately 36 years old. The Petitioner asserted that he did

not know the female was 16 years old at the t ime. He denied

that he "stalked" the female, but stated that he merely spoke to

her a few times in person and attempted to contact her once by

telephone. He continued to express surprise at the stalking

charge.

8. On or about June 6, 2001, the Petitione r was arrested

and charged with burglary of an unoccupied conveyance, a felony,

and criminal mischief. He was sentenced to two years of

probation, six months of psychological evaluation, and was

required to pay court costs. Adjudication of guilt was

with held.

9. At the hearing, the Petitioner stated that he went to

the home of an ex - girlfriend to collect a $500 debt she

allegedly owed to him. He testified that he knocked on her door

and got no response. As he left her residence, he saw that her

autom obile was unlocked. He opened the hood of the ex -

girlfriend's vehicle and ripped out the spark plug cables. He

asserted that he "didn't steal anything" because he threw the

cables away and didn't keep them.

10. On or about September 5, 2001, the Depar tment of

State, Division of Licensing, entered an order based on the

Petitioner's stipulation, revoking his Class "D" Security

Officer's License, based on the burglary charge.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdicti on over the parties to and subject matter of this

proceeding. § 120.57(1), Fla. Stat. (2003).

12. As the party seeking the license, the Petitioner has

the burden of proving entitlement to licensure by a

preponderance of the evidence. Dept. of Banking a nd Finance,

Div. of Securities and Investor Protection v. Osborne Stern &

Co. , 670 So. 2d 932 (Fla. 1996). The hearing to prove

entitlement is de novo in nature and is not a review of the

hearings previously conducted by the Florida Real Estate

Commission . In this case, the Petitioner has failed to meet the

burden of proof.

13. Section 475.25, Florida Statutes (2003), provides in

relevant part, as follows:

(1) The commission may deny an application

for licensure , registration, or permit, or

renewal th ereof; may place a licensee,

registrant, or permittee on probation; may

suspend a license, registration, or permit

for a period not exceeding 10 years; may

revoke a license, registration, or permit;

may impose an administrative fine not to

exceed $1,000 fo r each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing, if it finds that

the licensee, registrant, permittee, or

applicant:

* * *

(f) Has been convicted or found guilty of,

or entered a plea of nolo contendere t o,

regardless of adjudication, a crime in any

jurisdiction which directly relates to the

activities of a licensed broker or sales

associate, or involves moral turpitude or

fraudulent or dishonest dealing . The record

of a conviction certified or authentica ted

in such form as to be admissible in evidence

under the laws of the state shall be

admissible as prima facie evidence of such

guilt. (emphasis supplied)

14. Moral turpitude involves the idea of inherent baseness

or depravity in the private social rel ations or duties owed by

man to man or by man to society. It has also been defined as

anything done contrary to justice, honesty, principle, or good

morals, though it often involves the question of intent as when

unintentionally committed through error of judgment when wrong

was not contemplated . State ex rel. Tullidge v. Hollingsworth ,

108 Fla. 607, 146 So. 660, 661 (Fla. 1933). Stalking is

contrary to principle and good morals, and is an act of moral

turpitude. Burglary and criminal mischief are contr ary to

principle and one's duty to society, and are acts of moral

turpitude.

15. Subsection 475.17(1)(a), Florida Statutes (2003),

provides as follows:

(1)(a) An applicant for licensure who is a

natural person must be at least 18 years of

age; hold a h igh school diploma or its

equivalent; be honest, truthful,

trustworthy, and of good character ; and have

a good reputation for fair dealing. An

applicant for an active broker's license or

a sales associate's license 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 relationship 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, any nation, or any possession or

district of the United States, or any court

or l awful agency thereof, 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

revoking or susp ending 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

sufficient, it appear s to the commission

that the interest of the public and

investors will not likely be endangered by

the granting of registration . The

commission may adopt rules requiring an

applicant for licensure to provide written

information to the commission regarding the

applicant's good character.

(emphasis supplied)

16. In this case, the Petitioner acknowledged criminal

offenses in his application. The arrest records and other

relevant court records were not offered or admitted into the

record of this hearing.

17. Because neither party offered detailed police or court

records into evidence, the details of the offenses, especially

the stalking charge, are somewhat murky. However, review of the

Petitioner's testimony before the Commission and at the

administrati ve hearing suggests that the information provided by

the Petitioner has been less than candid. At the administrative

hearing, the Petitioner suggested that he didn't know the female

was 16 years old, yet he clearly knew that the female with whom

he was ma king contact was young. He acknowledged that on at

least one occasion when he spoke with the female, her mother

accompanied her. In his testimony to the Commission, he

described the girl as "cute," but "not beautiful." It is

reasonable to assume that an adult charged with stalking a

juvenile and subsequently sentenced to probation and an extended

psychological evaluation, did more than twice say "hello" and

make a telephone call.

18. As to the burglary and criminal mischief charges, the

Petitioner's a ctions demonstrate a lack of maturity and self -

control. His assertion that he didn't "steal anything" because

he did not retain the cables he ripped from the ex - girlfriend's

vehicle, suggests that he continues to misunderstand the nature

of his act.

19. The Petitioner has failed to meet his burden of

establishing by a preponderance of the evidence, that because of

lapse of time since the disqualifying offenses, and subsequent

good conduct and reputation, his application for licensure

should proceed.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Respondent enter a final order denying

the Petitioner's application for licensure as a real estate sales

associate.

DONE AND ENTERED this 17th day o f August, 2004, in

Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 17th day of August, 2004.

COPIES FURNISHED :

Alfonso Santana, Esquire

Division of Real Estate

Department of B usiness and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

Fernando Freire

5242 Millenia Boulevard, No. 304

Orlando, Florida 32839

Leon Biegalski, General Counsel

Department of Business and

Professional Re gulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Juana Watkins, Acting Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802 North

Orlando, Florida 328 08 - 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 Fi nal Order in this case.