05-001214 Rene Anthony Acker vs. Department Of Business And Professional Regulation, Florida Real Estate Commission Status: Closed Recommended Order on Friday, August 12, 2005.

Summary: Petitioner introduced pictures of the incident and explained that he was asked to make an identification of the customer or be prosecuted. The identification from the photos was not proof of bad, but of good moral character.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RENE ANTHONY ACKER, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1214

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard pursuant to notice on May 23, 2005,

by Stephen F. Dean, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Orange Park, Florida.

APPEARANCES

For Petitione r: Rene Anthony Acker, pro se

138 Via Disdelle

Orange Park, Florida 32073

For Respondent: Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

Administrative Law Division

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

Whether Petitioner lacks the moral character to be licensed

as a Florida r eal e state s alesperson.

PRELIMINARY STATEMENT

P etitioner, Rene Anthony Acker, applied for licensure as a

real estate salesperson. On his license, Acker indicated that

he had pled guilty to fraudulent use of a credit card. Based

upon this information, Acker's application was denied. The

letter of den ial reflects that the basis was Acker's plea of

nolo contendere to a charge of fraudulent use of a credit card

contrary to Section 475.25(f), Florida Statutes. The denial

advised Acker of his right to a hearing, which he requested, and

the Commission forw arded the case to the Division of

Administrative Hearings.

The matter was noticed for hearing on May 23, 2005, and

heard as noticed. Petitioner appeared, testified in his own

behalf and introduced Petitioner's Exhibit 1. He was given the

opportunity to f ile late - filed exhibits, which he did not do.

Respondent introduced under the seal of its document custodian

Petitioner's application file as its Composite Exhibit 1.

Respondent filed a Proposed Recommended Order that was read

and considered.

FINDINGS OF FACT

1. On May 4, 2004, Petitioner, Rene Anthony Acker, filed

an application for licensure with the Florida Real Estate

Commission as a real estate salesperson.

2. On that application, Acker revealed that he had pled

nolo contendere and was placed on pr obation for twelve months on

July 2, 2003, for fraudulent use of a credit card.

3. At hearing, Acker testified regarding the events that

led to his arrest. In November of 2003 during the beginning of

the Christmas shopping season, while he was a clerk at a Target

Department Store, a person of interest to local law enforcement

for credit card theft and who was under surveillance, presented

merchandise to Acker for purchase with a credit card. The card

was in the name of someone other than the customer. T he card

was accepted by Acker and the system, and the transaction

completed. Subsequently, the customer returned with a high -

dollar item and attempted to purchase it with the same credit

card. Acker accepted the card, but the system refused to accept

th e card on the second occasion. Several months later, the

deputy sheriff, who was working the case, came to Acker and

asked him to identify the customer as part of an effort to make

a case against the customer, a person with whom Acker was

acquainted as th e son of the owner of a restaurant where Acker

had worked as a waiter. Acker told the deputy that he had no

independent recollection of the transaction, and could not

identify the customer from the surveillance camera pictures he

was shown. The deputy in dicated that if Acker did not cooperate

and identify the individual, Acker would be charged with credit

card fraud. Acker stated that he could not identify the

customer from the photographs as the person with whom he was

acquainted. Acker was subsequentl y charged with credit card

fraud.

4. After consulting an attorney, Acker pled nolo

contendere to the charge. It was clear that this was a plea of

convenience under the plea agreement that was worked out.

5. The only evidence introduced by the Commission was

Acker's file that reflected that Acker revealed the plea on his

application and the court records of his plea, probation, and

early release from probation.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this case

pursuant to Section 120.57, Florida Statutes.

7. Petitioner, as the applicant for licensure, has the

burden of proving that he is qualified. See Florida Department

of Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981).

8. The ground for denial is narrow: violation of Section

475.25(1)(f), Florida Statutes, which provides that the

Commission may deny an applicant who has been convicted or found

guilty of, or entered a please of nolo contendere to 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 dealings.

9. The only facts presented in support of denying

Petitioner's application is his admission of and the record of

his entry of a plea of nolo contendere . On said basis, pursuant

to the statute cited above, an applicant may be denied. In

explanation and mitigation, Petitioner testified at hearing. He

admitted that he entered a p lea of nolo contendere to fraudulent

use of a credit card which under the circumstances he explained,

was a plea of convenience, i.e., a plea entered by a person who

perceives that it is cheaper and easier to enter the plea tha n

go to trial. Although a pl ea of nolo contendere may be

disqualifying, it is not deemed to be an admission of guilt for

other purposes.

10. In sum, the law supports the denial of the application

based upon entry of a plea of nolo contendere ; however, the

Commission has discretio n to issue a license.

11. Petitioner testified about the circumstances

surrounding his being charged with fraudulent use of a credit

card. In sum, he was asked to identify a customer he had had

several months previously during the beginning of the holida y

shopping season. After looking at the surveillance photographs

from the store's video system, Petitioner said that he could not

identify the customer as a person with whom he was acquainted,

and who the police alleged had presented the stolen credit car d.

Even when threatened with prosecution as an accessory,

Petitioner refused to identify the individual.

12. Petitioner presented as his Exhibit 1, the

surveillance photos presented by the deputy sheriff to him to

identify the customer. The pictures sho w the customer only from

the rear, wearing jeans, a T - shirt, and a baseball cap. While

it might be possible for someone to identify the individual from

the photographs introduced, it is also not surprising that it

would be impossible for a person to ident ify the individual from

said photos. The refusal to so identify the person under

penalty of being charged with an offense is certainly not

probative of moral turpitude. Having reviewed the photographs,

it is concluded that the refusal of Petitioner to id entify the

individual should be considered as a positive in terms of his

morality, in the absence of any other evidence to the contrary.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth h erein, it is

RECOMMENDED:

It is recommended that application of Petitioner be granted

pursuant to the Commission's discretion upon consideration of

the matters presented in mitigation.

DONE AND ENTERED this 1 2 th day of August, 2005, in

Tallahass ee, Leon County, Florida.

S

__

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(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 1 2 th day of August, 2005.

COPIES FURNISHED :

Rene Antho ny Acker

138 Via Tisdelle

Orange Park, Florida 32073

Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

Administrative Law Division

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Leon Biegalski, General Counsel

Department of Bus iness and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Guy Sanchez, Chairman

Florida Real Estate Commission

400 West Robinson Street, Suite 801N

Orlando, Florida 32801

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A ll 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.