04-003023 Addy Miller vs. Department Of Business And Professional Regulation, Florida Real Estate Commission Status: Closed Recommended Order on Wednesday, February 23, 2005.

Summary: Petitioner`s evidence was sufficient to show her entitlement to an approval of her application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADDY MILLER, )

)

Petitioner, )

)

vs. ) Case No. 04 - 302 3PL

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, FLORIDA )

REAL ESTATE COMMISSION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

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

on December 3, 2004, by video teleconference, at sites in Fort

Lauderdale and Tallahassee, Florida, before Administrative Law

Judge Michael M. Parrish of the Division of Adminis trative

Hearings.

APPEARANCES

For Petitioner: Ms. Addy Miller, pro se

5813 Coral Lake Drive

Margate, Florida 33063

For Respondent: Alfonso Santana, Esquire

Department of Business and Professi onal

Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

STATEMENT OF THE ISSUE

Whether Petitioner is qualified to take the examination

for licensure as a real estate sales associate.

PRELIMINARY STATEMENT

At the final hearing on December 3, 2004, the Petitioner

testified on her own behalf and also offered seven exhibits,

all of which were received in evidence. The Petitioner did

not call any additional witnesses at the hea ring. The

Respondent presented no testimonial evidence. Its evidentiary

presentation was limited to offering ten exhibits. All of the

Respondent's exhibits were received in evidence.

At the conclusion of the evidentiary portion of the

hearing, due to va cation plans, counsel for the Respondent

requested a deadline of January 15, 2005, for filing proposed

recommended orders. The Petitioner agreed to that deadline.

A transcript of the hearing was filed with the Division

of Administrative Hearings on Decemb er 22, 2004, and on

January 14, 2005, both parties filed proposed recommended

orders. (Petitioner's proposal was titled Summary

Presentation of Petitioner.) The parties' proposals have been

carefully considered during the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record

as a whole, the following Findings of Fact are made:

1. The Petitioner is presently sixty - eight years of age.

She first became licensed as a real estate sales associate in

the State of Florida in 1982, and in December of 1988 she

passed the examination for a broker's license.

2. Shortly after she passed the examination for a

broker's license, the Petitioner began setting up her own real

estate brokerage firm. At that time the Petitioner had her

sales associate license placed with a broker named Robert F.

Armand & Associates. Her arrangement with Mr. Armand was that

she would pay him a flat monthly fee of $250.00 in exchange

for the services brokers usually provide for sal es associates.

The agreement provided that Mr. Armand would not receive any

share of any commissions earned by the Petitioner.

3. While the Petitioner was in the process of making

arrangements to terminate her relationship with Mr. Armand and

start her o wn brokerage firm, the Petitioner was successful in

obtaining a contract for the sale of a residence ("the Molina

transaction"). At that time the Petitioner still had her

license placed with Mr. Armand's brokerage firm and had not

yet begun operation of h er own brokerage firm. Because Mr.

Armand had become very upset when the Petitioner told him she

would soon be leaving, the Petitioner did not want to have any

further dealings with Mr. Armand that were not absolutely

necessary, so she did not tell Mr. Ar mand about the Molina

transaction. Rather, she held the Molina transaction and

processed it through her own brokerage firm shortly

thereafter.

4. The Molina transaction closed in due course and there

was no financial harm to either the buyer or the sel ler.

There was no financial harm to Mr. Armand, because he was not

entitled to share in any commission related to the Molina

transaction.

5. By some means not revealed in the record of this

proceeding, the Respondent became aware of the manner in which

t he Petitioner had handled the Molina transaction and

initiated disciplinary action against the Petitioner. 1 The

Petitioner decided to resolve the disciplinary proceedings by

agreeing to surrender her licenses for revocation. Towards

that end, on April 1 0, 1989, the Petitioner signed a document

titled Affidavit for the Voluntary Surrender of License,

Registration, Certificate/Permit for Revocation. That

document included the following statements by the Petitioner:

1. That my name is Addy Miller.

2. That I am currently the holder of a

real estate

license/registration/certificate or permit

issued pursuant to Chapter 475, Florida

Statutes and the Rules of the Florida Real

Estate Commission.

3. That in lieu of further investigation

and prosecution of the pending complaint(s)

and case(s) received and filed with the

Department of Professional Regulation, I do

hereby consent to and authorize the Florida

Real Estate Commission of the Department of

Professional Regulation to issue a Final

Order revoking any and all of the licenses,

registrations, certificates and permits

issued to or held by the undersigned.

4. That the effective date of the

revocation shall be April 10, 1989. All

licenses, registrations, certificates and

permits are hereby deemed su rrendered and

the undersigned hereby requests that the

same be placed in and remain in inactive

status pending final disposition by the

Florida Real Estate Commission.

5. That I will not apply for nor

otherwise seek any real estate license,

registratio n, certificate or permit in the

State of Florida for a period of not less

than ten (10) years from the effective date

of the revocation .

6. That I will not perform any act or

service without first being the holder of a

valid and current license, regist ration,

certificate or permit thereof [sic] at the

time the act or service is performed.

7. That I waive any right to be noticed

of any further administrative proceedings

in this matter.

8. That I waive any right to appeal or

otherwise seek judicia l review of the Final

Order of revocation to be rendered in

accordance with the provisions of this

affidavit. [Emphasis added.]

6. The above - quoted affidavit was considered at a

meeting of the Florida Real Estate Commission on April 18,

1989. At that m eeting the Commission issued a Final Order,

the material parts of which read as follows:

On April 18, 1989, the Florida Real

Estate Commission heard this case to issue

a Final Order. On April 10, 1989, the

Respondent voluntarily surrendered her

license and entered a written agreement

that her license would be revoked. A copy

of this agreement is attached hereto as

Exhibit A and made a part hereof.

Based upon this information and upon the

information provided to the Florida Real

Estate Commission at i ts meeting of April

18, 1989, the Commission ORDERS that the

license of the Respondent be revoked,

effective April 10, 1989.

7. Prior to the incident that led to the 1989 order

described immediately above, the Petitioner had never before

had a complaint filed against her.

8. Consistent with paragraph 8 of the affidavit quoted

above, the Petitioner did not appeal the Final Order issued on

April 18, 1989. The Petitioner has complied with all of the

terms of the Final Order issued on April 18, 1989.

9. T he loss of the Petitioner's real estate license has

adversely affected her ability to make a living and support

herself. In recent years she has been working in sales and

marketing with several different companies. She appears to be

highly regarded by so me of her employers. During the fifteen

years since the revocation of her license, the Petitioner has

lived a moral and honorable life and has not been involved in

any matters that would cast doubt upon her good character and

her reputation for fair deali ng.

10. During the fifteen years since the revocation of her

license, the Petitioner has not been the subject of any

criminal charges.

11. The Petitioner acknowledges that her conduct related

to the Molina transaction so many years ago was improper and

i s committed to avoiding any improper conduct in the future.

Further, the Petitioner is sincerely embarrassed about her

conduct in that matter and is remorseful regarding her actions

in that regard. In view of the long lapse of time (more than

fifteen yea rs) since her misconduct related to the Molina

transaction, and in view of her good conduct and reputation

during that fifteen - year period, it is unlikely that the

interests of the public and investors will be endangered by

the granting of her application for relicensure.

12. On or about March 19, 2004, the Petitioner filed an

application to be relicensed as a sales associate. At a

meeting on May 19, 2004, the Florida Real Estate Commission

considered the Petitioner's application to be relicensed.

Follow ing such consideration the Commission voted to deny the

application. The Commission's order denying the application

gave the following reason for the denial: "After completely

reviewing the record and being otherwise fully advised, the

Board ORDERS that the application be DENIED based on the

applicant's answer to the question regarding a professional

license disciplined."

13. Apparently, at the May 19, 2004, meeting the

Commission was somewhat less than "fully advised," because at

a Commission meeting on June 16, 2004, there was staff

discussion of the fact that at the prior meeting "we did not

have the information that you have today," and that at the

prior meeting "we could not locate the old information." At

the June 16, 2004, meeting staff confirmed that "[s]ince the

May meeting we have found the old file. That's in your packet

today." At the June 16, 2004, meeting, the Commission tabled

further consideration of the Petitioner's application because

the Petitioner was sick and could not attend that m eeting.

14. The Petitioner's application for relicensure was

reconsidered at a Commission meeting on July 21, 2004. During

that meeting there was some discussion of the Petitioner's

background. During the course of that discussion the

Petitioner agreed with the observation of one of the

Commissioners that during the past fifteen years she had "been

absolutely squeaky clean." During the course of the meeting,

without any statement of the reason for doing so, one of the

Commissioners moved to deny the app lication, another seconded

the motion, and without any further discussion the

Petitioner's application was denied by a vote of five to one.

15. Following the July 21, 2004, Commission meeting, the

Commission issued a written order again denying the

Petiti oner's application to be relicensed. The written order

contained the following reason for the denial: "After

completely reviewing the record and being otherwise fully

advised, the Board ORDERS that the application be DENIED based

on the applicant's answe r to the question regarding the

discipline of a professional license."

16. The question on the application regarding any prior

discipline of a license called for a "yes" or "no" answer.

The Petitioner truthfully checked the "yes" box. Instructions

on th e application form asked those who checked the "yes" box

to also:

. . . please provide the full details of

any . . . administrative action including

the nature of any charges, dates, outcomes,

sentences, and/or conditions imposed; the

dates, name and loca tion of the court

and/or jurisdiction in which any

proceedings were held . . . and the

designation and/or license number for any

actions against a license or licensure

application.

17. The Petitioner complied with this request by

including as part of he r application a typed statement and a

handwritten statement which, respectively, read as follows, in

pertinent part:

THE TYPED STATEMENT

I held real estate licenses from 1982 - 1989.

I voluntarily surrendered my license to the

Department in 1989. I was not involved in

any litigation, with the DPR or the courts,

and there was no payment made from the

Recovery Fund. However, my license was

suspended for ten years that was fulfilled

in April, 1999. The Department informed me

that once I had served my suspens ion term,

I would be able to start again with the

salesman's classroom requirements and apply

for and pass the state examination as I am

presently doing with the Gold Coast School

of Real Estate.

If you require additional information,

please do not hesita te to contact me.

THE HANDWRITTEN STATEMENT

I voluntarily surrendered my license in

April 1989. I held on to escrow money for

a longer period of time than the law

allows. The transaction was successfully

closed and it was to be my last. My

suspension w as for a maximum of ten years

that was satisfied in 1999. There was no

other consequence other than my ability to

practice real estate for ten years.

18. The answers quoted above appear to be truthful and

candid answers consistent with the requirements of the

instructions on the application form. The details in the

answers provide some enlightenment regarding the basis for the

Commission's disciplinary action against the Petitioner in

1989, but those details, standing alone, do not provide any

enlightme nt regarding the basis for the Commission's vote to

deny the pending application for relicensure.

19. It appears that since the revocation of her real

estate license in 1989, the Petitioner has rehabilitated

herself and that therefore it is not likely tha t her

relicensure would endanger the public. 2

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

case pursuant to Section 120.57(1), Florida Statutes.

21. The Petitioner is see king to be licensed as a real

estate sales associate.

22. The Department of Business and Professional

(Department) is the state agency responsible for licensing

real estate sales associates in the State Florida. § 475.181,

Fla. Stat.

23. Pursuant to Sec tion 475.181(1), Florida Statutes,

the Department must "license any applicant whom the [Florida

Real Estate C]ommission certifies pursuant to subsection (2),

to be qualified to practice as a . . . [real estate] sales

associate."

24. Section 475.17, Florid a Statutes, prescribes the

qualifications that an applicant for licensure must possess.

Subsection (1)(a) of Section 475.17, Florida Statutes,

provides as follows:

An applicant for licensure who is a natural

person must be at least 18 years of age;

hold a high school diploma or its

equivalent; be honest, truthful,

trustworthy, and of good character; 3 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 ma ke 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 disbar red, 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

o r lawful 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 s uspending 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 app ears 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 regard ing the

applicant's good character.

25. In the instant case, the Commission has

preliminarily determined that the Petitioner is not "qualified

to practice as a. . . [real estate] sales associate." This

determination appears to be based on the fact that her real

estate license was previously revoked by the Commission,

because the Commission has not specified any other basis for

its determination. 4

26. The revocation of Petitioner's license in 1989 was

not permanent, and therefore relicensure is possible. See

Turner v. Department of Professional Regulation , 591 So. 2d

1136, 1137 (Fla. 4th DCA 1992); Schiffman v. Department of

Professional Regulation, Board of Pharmacy , 581 So. 2d 1375,

1378 (Fla. 1st DCA 1991); Jordan v. Department of Professional

Regulat ion , 522 So. 2d 450, 452 - 53 (Fla. 1st DCA 1988); Holmes

v. Department of Professional Regulation, Board of Nursing ,

504 So. 2d 1338, 1340 (Fla. 1st DCA 1987); Wood v. Department

of Professional Regulation, Board of Dentistry , 490 So. 2d

1079, 1081 (Fla. 1s t DCA 1986); Section 475.25(3), Florida

Statutes ("The [D]epartment [of Professional Regulation] shall

reissue the license of a licensee against whom disciplinary

action was taken upon certification by the [C]ommission that

the licensee has complied with a ll of the terms and conditions

of the final order imposing discipline.").

27. Effective October 1, 1992, the following provision

was added to Section 455.227, Florida Statutes:

In the event the board, or the department

when there is no board, determines t hat

revocation of a license is the appropriate

penalty, the revocation shall be permanent.

However, the board may establish, by rule,

requirements for reapplication by

applicants whose licenses have been

permanently revoked. Such requirements may

include , but shall not be limited to,

satisfying current requirements for an

initial license.

This provision is now found in subsection (5) of Section

455.227, Florida Statutes. On February 13, 1996, the

Commission's Rule 61J2 - 24.005, Florida Administrative Cod e,

became effective. It provides as follows:

(1) Pursuant to s. 455.227(5), F.S.,

revocation of a license is permanent except

for the following violations:

(a) Section 61J2 - 3.015,F.S. -- filing an

application for renewal of a license when

the individual had not complied with the

provisions of 61J2 - 3.009 or 61J2 - 3.020,

F.A.C., whichever is applicable.

(b) Section 475.25(1)(m), F.S. --

obtaining a license by means of fraud,

misrepresentation or concealment when the

licensee had filed an application for

li censure which contained false or

fraudulent information or answers.

(2) An individual whose license has been

revoked for the above listed violations may

not apply for a sales associate's license

for a period of five (5) years after the

date of filing of t he final order revoking

the license unless the Commission specifies

a lesser period of time in the final order,

said lesser period of time based upon

mitigating factors presented by the

Respondent. The applicant must meet all

the requirements for initial licensure as a

sales associate, including examination, as

required in Sections 475.17 and 475.175,

F.S. The Commission may refuse to certify

the applicant pursuant to Section

475.17(1)(a), 475.181 or 475.25(1), F.S.

Neither Section 455.227(5), Florida St atutes, nor the

Commission's Rule 61J2 - 24.005, Florida Administrative Code,

however, was in effect in 1989 when the Commission revoked the

Petitioner's real estate license, and cannot be applied

retroactively to make the revocation of the Petitioner's

lice nse permanent and bar her from seeking relicensure. See

Middlebrooks v. Department of State, Division of Licensing ,

565 So. 2d 727, 728 - 29 (Fla. 1st DCA 1990); Willner v.

Department of Professional Regulation, Board of Medicine , 563

So. 2d 805, 806 (Fla. 1st DCA 1990); Lewis v. Criminal Justice

Standards and Training Commission , 462 So. 2d 528, 529 (Fla.

1st DCA 1985).

28. At the Section 120.57(1) hearing that was held in

the instant case, the burden was on the Petitioner to

establish by a preponderance o f the evidence that "because of

lapse of time [since the violations that led to the revocation

of her license] and [her] subsequent good conduct and

reputation, or other reason deemed sufficient, . . . the

interest of the public and investors will not like ly be

endangered by the granting of [her application for licensure

as a sales associate]." See Pershing Industries, Inc., v.

Department of Banking and Finance , 591 So. 2d 991, 994 (Fla.

1st DCA 1991); Cordes v. Department of Environmental

Regulation , 582 So. 2d 652, 654 (Fla. 1st DCA 1991);

Department of Transportation v. J.W.C., Co. , 396 So. 2d 778,

787 (Fla. 1st DCA 1981); Department of Health and

Rehabilitative Services v. Career Service Commission , 289 So.

2d 412, 414 - 15 (Fla. 4th DCA 1974).

29. The Petitioner has met her burden of proof.

30. By having presented at the Section 120.57(1) hearing

held in this case unrefuted evidence of her good post -

revocation conduct and reputation, she has established her

rehabilitation and the absence of a likeliho od that her

relicensure (more than fifteen and a - half years following the

revocation of her license) would result in harm to any member

of the public.

31. In view of the foregoing, the Commission should not

decline to certify the Petitioner as qualified to practice as

a sales associate based upon the previous revocation of her

license. See Aquino v. Department of Professional Regulation ,

430 So. 2d 598 (Fla. 4th DCA 1983).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Commission issue a final

order finding that the Petitioner is qualified to practice as

a real estate sales associate, subject to passing the

licensure examination.

DONE AND ENTERED this 23rd day of February, 2005, in

Tallahassee, L eon County, Florida.

S

___________________________________

MICHAEL M. PARRISH

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 23rd day of February, 2005.

ENDNOTES

1/ The record in this case does not contain any details about

the nature of the co mplaints or the nature of the charges that

were brought against the Petitioner as a result of the manner

in which she handled the Molina transaction.

2/ There is no evidence in the record of this case that is

inconsistent with the Petitioner's assertions that she is an

honorable, trustworthy person of good moral character who very

much regrets the conduct that led to the revocation of her

prior license. (The Respondent's proposed recommended order

concedes that the Petitioner ". . . provided uncontested

testimony of compliance with the conditions imposed in the

previous disciplinary judgement [sic], and showed remorse as

well as a resolution to adhere to principles of correct

conduct.")

3/ "Good character" is "not only the ability to distinguish

between right and wrong, but the character to observe the

difference; the observance of the rules of right conduct, and

conduct which indicates and establishes the qualities

generally acceptable to the populace for positions of trust

and confidence." Zemour, Inc . v. State Division of Beverage ,

347 So. 2d 1102, 1105 (Fla. 1st DCA 1977). A person

demonstrates a lack of "good character" when he engages in

"acts and conduct which would cause a reasonable [person] to

have substantial doubts about an individual's hone sty,

fairness, and respect for the rights of others and for the

laws of the state and nation." Florida Board of Bar Examiners

Re: G.W.L. , 364 So. 2d 454, 458 (Fla. 1978).

4/ When an agency intends to deny an application for a

license, Section 120.60(3), Florida Statutes, requires that

the applicant be provided with written notice of the agency's

intended action. With exceptions not relevant here, "[t]he

notice must state with particularity the grounds or basis for

the . . . denial of the license. . . ."

COPIES FURNISHED:

Addy Miller

5813 Coral Lake Drive

Margate, Florida 33063

Alfonso Santana, Esquire

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801 - 1757

Carlos Valdes, Chairman

Florid a Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street

Post Office Box 1900

Orlando, Florida 32802 - 1900

Leon Biegalski, General Counsel

Department of 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 wi th the

agency that will issue the final order in this case.