05-001225 Manuel Oria vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Friday, June 24, 2005.

Summary: Petitioner, who committed a drug smuggling offense in 1988, proved that he had rehabilitated himself and that, if licensed, he would not likely endanger the public. Recommend that license be granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANUEL ORIA, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1225

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

FLORIDA REAL ESTATE COM MISSION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

May 12, 2005, by video teleconference at sites in Lauderdale

Lakes and Tallahassee, Florida, befo re Stuart M. Lerner, a duly -

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

419 Vine Street

Kissimmee, Florida 34741

For Respon dent: Barbara R. Edwards, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

Whether Pe titioner's application for licensure as a real

estate sales associate should be denied on the ground set forth

in the Florida Real Estate Commission's November 23, 2004,

Notice of Denial.

PRELIMINARY STATEMENT

On November 23, 2004, through the issuance of a Notice

Denial, the Florida Real Estate Commission (Commission) advised

Petitioner that it had preliminarily decided to deny

Petitioner's application for licensure as a real estate sales

associate based on the following:

The Florida Real Estate Commissio n has

determined that the Applicant has been

adjudicated guilty of crimes relating to the

activities of a licensed broker or sales

associate, and crimes of moral turpitude or

fraudulent or dishonest dealing.

Specifically it has found that the

applicant, M anuel Oria, has been convicted

of or found guilty of, or entered a plea of

nolo contendere to:

1. Drug Importation.

The Commission further advised Petitioner in its Notice of

Denial of his right to "request a hearing on the charges." By

letter dated De cember 6, 2004, Petitioner, through counsel,

"dispute[d] that he [was] not qualified to be a real estate

licensee" and "petition[ed] for a formal hearing" on the matter.

On April 4, 2005, the case was referred to the DOAH for the

"assign[ment of] an admini strative law judge for the purpose of

hearing the disputed issues of fact arising from the

[Commission's] Notice of Denial of Petitioner's application for

licensure."

As noted above, the hearing was held on May 12, 2005. Four

witnesses testified at the he aring: Petitioner, Amparo Tojeira,

Ana Hidalgo, and Pedro Casal. In addition, two exhibits

(Petitioner's Exhibit 1 and Respondent's Exhibit 1) were offered

and received into evidence.

At the close of the taking of evidence, the undersigned

established a deadline (21 days from the date of the filing with

DOAH of the hearing transcript) for the filing of proposed

recommended orders.

The Transcript of the hearing (consisting of one volume)

was filed with DOAH on May 25, 2005.

Petitioner and Respondent fil ed their Proposed Recommended

Orders on June 14, 2005.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. Petitioner is a 52 - year - old man who resides in Miami -

Dade County, Flo rida, with his wife of several months,

Ana Hidalgo, her children, and his youngest child from a

previous marriage.

2. As a younger man, Petitioner was a licensed real estate

broker. In the 1980's, however, he decided not to renew his

license because, du e to "lack of sales," he "wasn't really being

active." At no time during the period of his licensure was he

ever accused of any wrongdoing.

3. After his real estate broker's license expired,

Petitioner went into the real estate development and contractin g

business full - time.

4. The business did not do well and, as a result,

Petitioner found it difficult to adequately provide for himself,

his wife, and children.

5. Too proud to accept the financial assistance family

members offered, Petitioner, instead, resorted to criminal

activity to help ease his financial problems. Specifically, for

a fee, he acted as an "intermediary" and helped "put . . .

together" a cocaine supplier in Columbia (South America) with a

cocaine distributor in Florida. This occurred approximately 17

years ago, in 1988. Other than his involvement in this drug

smuggling scheme, Petitioner has been a law - abiding citizen.

6. Petitioner was subsequently arrested for his role in

this illicit operation and charged in federal district court

with the felony crime of drug importation. In or about 1989,

after entering a guilty plea, he was adjudicated guilty of the

crime and sentenced to federal prison.

7. Petitioner cooperated with the government and,

consequently, had his sentence reduced.

8. Petitioner served approximately 11 years in prison,

until he was released on parole on September 28, 2000. He was a

model prisoner.

9. Since his release from prison, Petitioner has been

employed as a car salesman by Lehman Auto World. Throughout th e

period of his employment, he has been a reliable, dedicated,

hard - working and trusted employee, who has developed a

reputation for honesty and fair dealing.

10. As part of his job duties, Petitioner sometimes

handles (in a fiduciary capacity) large sums of money. He has

always discharged this responsibility in an honest and

trustworthy manner.

11. Petitioner is still on parole and under the

supervision of a United States probation officer. Unless the

sentencing court grants early termination, 1 Petiti oner's parole

will terminate on September 28, 2005.

12. In the almost five years he has been on parole,

Petitioner has conducted himself in an exemplary manner.

13. Petitioner's prison experience has transformed him

into a more mature, responsible, and insightful person, who is

repentant and remorseful about his crime.

14. He understands all too well what his ill - advised

decision, 17 years ago, to engage in criminal activity has cost

him and his family, particularly his children, who did not have

their father around for those 11 years that Petitioner was

incarcerated.

15. Petitioner is committed to not making the same mistake

again in the future and jeopardizing his freedom and ability to

be with his family. He has "learned [his] lesson." He is now a

firm believer in old adage "crime does not pay." Given the

price he has paid for his one criminal indiscretion, he has no

intention of ever again letting his good judgment be overwhelmed

by the lure of making easy money from criminal activity. He

recogn izes that to succumb to such temptation would be contrary

not just to society's best interests but his as well, and that,

if he ever encounters financial problems, he would be far better

served "rely[ing] on [the help of] friends [and] family" than

resorti ng to crime, as he did 17 years ago.

16. In short, Petitioner has been rehabilitated, and it

appears that the interest of the public and investors will not

likely be endangered if he is granted the license he seeks. He

now seems to be firmly rooted on th e right side of the law.

CONCLUSIONS OF LAW

17. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

18. Petitioner has applied to become licensed as a real

estate sales as sociate in Florida.

19. Section 475.17, Florida Statutes, sets forth the

"qualifications for [such] licensure." Subsection (1)(a) of the

statute provides as follows:

An applicant for licensure who is a natural

person must be at least 18 years of age;

hol d a high 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 disb arred, 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 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 suspending 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 a ppears 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 rega rding the

applicant's good character.

20. Furthermore, Section 475.25(1)(f), Florida Statutes,

provides that an application for licensure as a real estate

sales associate may be denied if the applicant "[h]as been

convicted or found guilty of, or entered a plea of nolo

contendere to, 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."

21. Relying on Sectio n 425.25(1)(f), Florida Statutes, the

Commission preliminarily denied Petitioner's application for

licensure based upon his having "been convicted of or found

guilty of, or entered a plea of nolo contendere to: Drug

Importation."

22. Petitioner request ed (and was granted) a hearing

conducted in accordance with Sections 120.569 and 120.57(1),

Florida Statutes, to challenge this preliminary determination.

23. The evidence adduced at that hearing indisputably

reveals (and Petitioner freely admits) that in 1989 he was

convicted, in federal district court, of participating in

"[d]rug [i]mportation" during the previous year.

24. "Drug [i]mportation" is a crime "which . . . involves

moral turpitude," within the meaning of Section 475.25(1)(f),

Florida Statu tes. See Milliken v. Department of Business and

Professional Regulation , 709 So. 2d 595, 597 (Fla. 5th DCA

1998) (" Milliken also argues that possession of cocaine with

intent to distribute is not a crime which violates section

475.25(1)(f) because it does not involve moral turpitude or

fraudulent or dishonest dealing. That section provides that a

real estate license may be suspended or revoked if a licensee

has been convicted of a crime 'which directly relates to

activities of a licensed broker or salesper son, or involves

moral turpitude or fraudulent or dishonest dealing.' Not every

crime provides a basis for suspension of a real estate

license. . . . In this case, Milliken did more than merely

possess a small amount of illegal drugs. He was convicted of

possessing cocaine with the intent to sell . Under contemporary

community standards, the evil of narcotics trafficking is well

known and accepted. We have no problem with concluding it is a

crime involving moral turpitude."); see also Matter of Roberso n ,

429 A.2d 530 (D.C. 1981)("This court has previously held that

the crime of conspiracy to possess a controlled substance, with

intent to distribute, is one inherently involving moral

turpitude,"); and State v. Hennings , 475 P.2d 926, 930 (Wash.

1970)("Wi thout doubt, by contemporary community standards

possession and sale of narcotics, unless authorized by law, is a

crime which by its very nature involves 'moral turpitude.'".).

25. Accordingly, in order to avoid a finding that, in

light of his conviction, he does not meet the qualifications for

licensure as a real estate sales associate set forth in Section

475.17(1)(a), Florida Statutes, and therefore his application

for such licensure should be denied pursuant Section

475.25(1)(f), Florida Statutes, it w as Petitioner's burden to

establish at hearing, by a preponderance of the evidence, that,

"because of lapse of time and subsequent good conduct and

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

interest of the public and investors will not likel y be

endangered" by the granting of his application. See Department

of Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern and Company , 670 So. 2d 930 (Fla.

1996)("The general rule is that a party asserting the

affirmative of an issue has the burden of presenting evidence as

to that issue."); and Florida Department of Health and

Rehabilitative Services v. Career Service Commission , 289 So. 2d

412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is on the

party asserting the affirmative on an issue before an

administrative tribunal. . . . 'As a general rule the

comparative degree of proof by which a case must be established

is the same before an administrative tribunal as in a judicial

proceeding -- that is, [a] preponderance o f the evidence. It is

not satisfied by proof creating an equipoise, but it does not

require proof beyond a reasonable doubt.'"); and Section

120.57(1)(j), Florida Statutes ("Findings of fact shall be based

upon a preponderance of the evidence, except in p enal or

licensure disciplinary proceedings or except as otherwise

provided by statute . . . .").

26. Petitioner met his burden of proof. He showed that

since his criminal transgression 17 years ago, he has conducted

himself, both in prison and in the com munity (while on parole),

in such a commendable manner, and he has so changed his approach

to life, that it does not appear likely that his being granted a

real estate sales associate license will endanger the interest

of the public and investors.

27. T hat Petitioner, in 1988, engaged in, and, a year

later, was convicted of, "[d]rug [i]mportation," therefore, does

not provide a basis to deny him licensure as a real estate sales

associate. 2 See Aquino v. Department of Professional Regulation ,

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

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Florida Real Estate Commission issue a

Final Order granting Petitioner's application for licensure as a

real estat e sales associate.

DONE AND ENTERED this 24th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

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 24th day of June, 2005 .

ENDNOTES

1 Petitioner's probation officer has written Petitioner's

attorney a letter indicating that, as of May 10, 2005, her (the

probation officer's) "office [was] in the process of preparing a

request for early termination of Petitioner's parole."

2 In its Proposed Recommended Order, Respondent makes the

following argument in support of its position that Petitioner

should be denied the licensure he is seeking:

[Section 112.011( 1)(b), [Florida Statutes]

provides, in pertinent part, that "a person

whose civil rights have been restored shall

not be disqualified to practice . . .

any . . . profession . . . for which a

license . . . is required to be issued by

the state, [or] any of its agencies . . .

solely because of a prior conviction for a

crime."

Thus, the converse is not precluded and a

person whose civil rights have not been

restored may be disqualified to practice any

profession for which a license is required

to be issued b y the state or any of its

agencies solely because of prior conviction

for a crime. . . .

Mr. Oria is not eligible to seek restoration

of his civil rights while on parole. . .

The answer to the third question is "Yes, a

convicted felon whose civil rights have not

been restored by the Clemency Board may be

denied licensure pursuant to section

112.011(b), F.S.

The undersigned disagrees with Respondent to the extent

Respondent is contending that the Commission has the authority

to deny, "solely because of a prior conviction for a crime," the

licensure application of a convicted felon whose civil rights

have not been restored, even if there has been a showing that,

" because of lapse of time and subsequent good conduct and

reputation, or other reason deemed su fficient, it appears to the

[C]ommission that the interest of the public and investors will

not likely be endangered by the granting of [the license] ." Such

an interpretation is not mandated by the plain meaning of the

words used by the Legislature in Sect ion 112.011(1)(b), Florida

Statutes, and it flies in the face of the clear and unambiguous

language of Section 475.17(1)(a), Florida Statutes, which

specifically addresses the qualifications for licensure as a

real estate sales associate and must be given effect. See

McKendry v. State , 641 So. 2d 45, 46 (Fla. 1994)("[A] specific

statute covering a particular subject area always controls over

a statute covering the same and other subjects in more general

terms.")(citations omitted); Forsythe v. Longboat Key Beach

Erosion Control District , 604 So. 2d 452, 455 (Fla. 1992)("Where

possible, courts must give full effect to all statutory

provisions and construe related statutory provisions in harmony

with one another."); Hillsborough County Governmental Employees

Association, Inc. v. Hillsborough County Aviation Authority , 522

So. 2d 358, 361 - 62 (Fla. 1988)("While section 447.309(3) clearly

applies, it is unclear whether section 447.601 applies to this

case. The language of that statute does not clarify whether it

was intended to control conflicts between collective bargaining

agreements and civil service rules. The legislative history of

this statute is equally ambiguous on the question of whether it

should apply to this particular type of conflict. Accordingly,

we must reject the argument that section 447.601 controls this

conflict."); and Osorio v. Board of Professional Surveyors and

Mappers , 898 So. 2d 188, 190 (Fla. 5th DCA 2005)("When the

language of the statute under interpretation is unambiguous and

has a plain and ordinary meaning, the plain meaning should be

given effect.").

COPIES FURNISHED :

Daniel Villazon, Esquire

419 Vine Street

Kissimmee, Florida 34741

Barbara R. Edwards, Esquire

Assistant Attorney General

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Juana Car starphen Watkins, Acting Director

Division of Real Estate

400 West Robinson Street, Suite 802, North

Orlando, Florida 32801

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tal lahassee, Florida 32399 - 2202

N OTICE OF RIGHT TO SU BMIT 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.