05-002773 Sean Fisher vs. Department Of Business And Professional Regulation, Division Of Real Estate, Florida Real Estate Commission Status: Closed Recommended Order on Tuesday, November 22, 2005.

Summary: There has been a sufficient lapse of time and subsequent good conduct by Petitioner since his sales associate license was suspended. Therefore, Petitioner`s application for licensure as a real estate broker should be approved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEAN FISHER, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2773

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

FLORIDA REAL ESTATE COMMISSION, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on October 5, 2005, in Clearwater, Florida, before T. Kent

Wetherell, II, the designated Administrative Law Judge of the

Division of A dministrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

419 West Vine Street

Kissimmee, Florida 34741

For Respondent: Barbara Rockhill Edwards, Esquire

Lee Ann Gustafson, Esquire

De partment of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue is whether Petitioner’s application for licensure

as a real estate broker should be approved.

PRELIMINARY STATEMENT

On Au gust 23, 2004, Petitioner filed an application for

licensure as a real estate broker. Petitioner’s application was

considered by the Florida Real Estate Commission (Commission) at

its meeting on December 11, 2004. The Commission voted to deny

the applica tion, and through a Notice of Denial dated

January 13, 2005, the Department of Business and Professional

Regulation, Division of Real Estate (Division) , formally advised

Petitioner that his license application was denied.

Through a letter dated January 31, 2005, Petitioner timely

requested a “formal hearing” on the denial of his application.

B efore the matter was referred to the Division of Administrative

Hearings (DOAH), the Commission reconsidered Petitioner’s

application at its meeting on May 18, 2005. The Commission

again voted to deny Petitioner’s application, but the denial was

not memorialized until September 28, 2005, when the Division

issued an Amended Notice of Intent to Deny.

On August 1, 2005, the Commission referred the matter to

DOAH for the assignment of an administrative law judge to

conduct the hearing requested by Petitioner. The final hearing

was scheduled for and held on October 5, 2005.

At the hearing, Petitioner testified in his own behalf and

also presented the testimony of Phillip W etter. Petitioner's

Exhibit P1 was received into evidence. The Commission did not

present any witnesses. The Commission’s Exhibits R1 through R3

were received into evidence. Official recognition was taken of

Sections 475.17, 475.25, 475.42, and 475.181 , Florida Statutes.

The Transcript of the final hearing was filed on

October 12, 2005. The parties were initially given 10 days from

that date to file their proposed recommended orders (PROs), but

the deadline was subsequently extended to November 4, 2005 , upon

the Commission’s unopposed motions. The PROs submitted by the

parties have been given due consideration.

FINDINGS OF FACT

1. Petitioner has been a licensed real estate sales

associate since 2000. His license number is 693538.

2. Most of Petiti oner’s work in the real estate industry

has involved business transactions, but he has also handled

transactions involving residential properties.

3. On August 23, 2004, Petitioner filed an application for

lice nsure as a real estate broker.

4. Petition er disclosed in the application that, in Ju ly

2003, his sales associate license was suspended by the

Commission for 30 days and that he was placed on probation for a

period of six months.

5. That disciplinary action was based upon a single

incident that o ccurred on or about November 7, 2001 .

6. Petitioner agreed to the disciplinary action a s part of

a “ Stipulation” to resolve an Administrative Complaint charging

him with fraud and misrepresentation in violation of Section

475.25(1)(b), Florida Statutes (2 001) , and with having operated

as a broker without a license in violation of Sections

475.42(1)(a) and 475.25(1)(e), Florida Statutes (2001) .

7. The Administrative Complaint contained the following

“essential allegations of material fact,” which were admi tted by

Petitioner as part of the Stipulation:

4. On or about November 7, 2001,

Respondent, a seller’s agent, facilitated a

purchase and sale transaction between Buyer

and Seller.

5. On or about November 7, 2001,

[Petitioner] was not registered with a

broker. [ 1 ]

6. The transaction referenced above

failed to close.

7. Buyer released a $1,000.00 payment to

Seller.

8. [Petitioner] submitted the $1,000.00

payment to Seller.

9. [Petitioner] instructed [Seller] to

execute a check in the amo unt of $500.00

payable to “Cash.” [ 2 ]

10. [Petitioner] accepted the $500.00

payment as his own payment for services.

8. The Final Order adopting the Stipulation was filed with

the agency clerk on June 25 , 2003.

9. Petitioner’s suspension commenced on July 25 , 2003,

which is “thirty days from the date of filing of the F inal

O rder.” The suspension ended 30 days later, on August 24, 2003.

10. Petitioner’s probation ran “for a period of six (6)

months from the Effective Date [of the Stipulation] ,” which was

defined as the date that the Final Order was filed with the

agency clerk. As a result, the probation period ran from June

25, 2003, to December 25, 2003.

11. Petitioner was required to complete a three - hour

ethics course and a four - hour escrow manag ement course during

the probation period, which he did.

12. Petitioner has not been subject to any other

disciplinary action.

13. Petitioner has taken several continuing education

courses in addition to those required as part of his probation.

He is w orking towards certification by the Graduate Realtor

Institute.

14. Petitioner has taken the classes necessary to become a

real estate broker, and he passed the broker examination.

15. Petitioner has worked for broker Phillip Wetter since

March 2005. Petitioner manages the day - to - day operation of Mr.

Wetter’s brokerage firm . His responsibilities include preparing

listings, negotiating contracts, and handling escrow funds . H e

has b een involved in over 50 successful real estate transactions

under Mr. W etter’s supervision.

16. According to Mr. Wetter, Petitioner is meticulous in

his work, including his handling of escrow funds, and he always

makes sure that he “dots all his ‘I’s’ and crosses all his

‘T’s’.”

17. Petitioner acknowledged in his testimony before the

Commission and at the final hearing that what he did in November

2001 was wrong. He credibly testified that h e has learned from

his mistake.

18. In his testimony before the Commission and at the

final hearing, Mr. Wetter attested to Petitione r’s honesty,

ethics, good moral character, as well as his qualifications to

be a broker. That testimony was unrebutted and is corroborated

by the letters of support from Petitioner’s former clients that

are contained in his application file , Exhibit R1 .

1 9. Mr. Wetter’s opinions regarding Petitioner’s fitness

for licensure as a real estate broker are given great weight.

Those opinions are based not only on his personal observations

as Petitioner’s current qualifying broker, but also on his

personal exper ience with Petitioner representing him in several

business transactions while Petitioner was working for other

brokers.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569,

1 20.57(1), Florida Statutes (2005 ). 3

21. The Commission and the Division are the state agencies

responsible for regulating real estate brokers and sales

associates. See generally Ch. 475, pt. I, Fla. Stat.

22. The Division is the agency that issues the real estate

broker license, but it does so only after certification from the

Commission that the applicant has satisfied the applicable

statutory and rule criteria. See § 475.181(1) - (2), Fla. Stat.

23. Petitioner has the burden to prove by a prepondera nce

of the evidence that he satisfies the criteria for licensure as

a real estate broker. See Dept. of Banking & Finance v.

Osborne, Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); Dept. of

Transportation v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla.

1st D CA 1981).

24. The Division’s duty to license an applicant certified

by the C ommission is ministerial , as is its duty to deny

licensure to an applicant not certified by the Commission . See

§ 475.181(1), Fla. Stat (“The [Division] shall license any

applica nt whom the commission certifies, pursuant to subsection

(2), to be qualified to practice as a broker . . . .” ) (emphasis

supplied).

25. The Commission’s certification ( or not) of an

applicant for licensure is subject to the provisions of Section

475.181 ( 2) , Florida Statutes, and the statutes referenced

therein, a s well as the provisions of Section 475.25(1), Florida

Statutes.

26. The first sentence of Section 475.18 1(2), Florida

Statutes, requires the Commission to certify certain applicants

for licensu re. It provides :

The commission shall certify for licensure

any applicant who satisfies the requirements

of ss. 475.17, 475.175, and 475.180.

§ 475.181(2), Fla. Stat. (emphasis supplied) .

27. The second sentence of Section 475.181(2), Florida

Statutes, authorizes the Commission to refuse to certify certain

applicants for licensure. It provides:

The commission may refuse to certify any

applicant who has violated any of the

provisions of s. 475.42 or who is subject to

discipline under s. 475.25. . . . .

Id. (emphasis supplied).

28. Section 475.25(1), Florida Statutes, also authorizes

the Commission to deny an application for licensure if it finds

that the applicant committed certain acts. As it relates to

this case, the statute provides:

The commissio n may deny an application for

licensure . . . if it finds that the . . .

applicant:

(a) Has violated any provision of . . .

s. 475.42. . . . .

* * *

(e) Has violated any of the provisions of

[Chapter 475, Florida Statutes] . . . .

§ 475.25(1 )(a) and (e), Fla. Stat. (emphasis supplied).

29. Section 475.17, Florida Statutes, which is titled

“qualifications for practice” and is referenced in the first

sentence of Section 475.181(2), Florida Statutes, provides in

pertinent part :

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; and have

a good reputation for fair dealing. An

applicant for an active broker's li cense 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 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 subsequ ent good conduct

and reputation, or other reason deemed

sufficient, it appears 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

appli cant for licensure to provide written

information to the commission regarding the

applicant's good character.

§ 475.17(1)(a), Fla. Stat. (e mphasis supplied).

30. It is undisputed that Petitioner ’s real estate sales

associate license was suspended pursuan t to , and based upon

violations of , Chapter 475, Florida Statutes (2001) . As a

result, the emphasized language in Section 475.17(1)(a), Florida

Statutes, is directly implicated and Petitioner is “deemed not

to be qualified” for licensure as a real estate broker , “unless,

because of lapse of time and subsequent good conduct and

reputation, or other reason deemed sufficient, it appears to the

commission that the interest of the public and investors will

not likely be endangered by the granting of registratio n.”

31. Petitioner met his burden to overcome the statutory

presumption that he is not qualified for licensure . It has been

four years since the incident that led to the suspension of

Petitioner’s real estate sales associate license (and almost two

years since the end of his probation period) , which is a

sufficient lapse of time; Petitioner has not had any

disciplinary problems since that time; Pet itioner’s current

qualifying broker (and former client) credibly testified

regarding Petitioner’s good reputa tion, good character, and his

qualifications for licensure as a real estate broker; and there

is no credible evidence that the approval of Petitioner’s

application will endanger the public interest or investors and,

to the contrary, the evidence establishe s that Petitioner

learned from his mistake and that he is conscientious in his

handling of escrow funds . Therefore, Petitioner’s license

application should be approved.

32. The Commission argues in its PRO that Section

475.17(1)(a), Florida Statutes, “do es not apply to the case at

bar, at all.” See Commission’s PRO, at 7. Instead, the

Commission contends that the denial of Petitioner’s application

is justified based upon the second sentence of Section

475.181(2), Florida Statutes, and/or Section 475.25( 1) , Florida

Statutes, since it is undisputed that Petitioner violated

Sections 475.25 and 475.42, Florida Statutes (2001).

33. This argument is rejected because the discretion given

to the Commission by the second sentence of Section 475.181(2) ,

Florida S tatutes, and Section 475.25(1), Florida Statutes, to

refuse to certify certain applicants for licensure, must be read

together with Section 475.17(1)(a), Florida Statutes. See

Aquino v. Dept. of Professional Regulation , 430 So. 2d 598, 599 -

600 (Fla. 4th D CA 1983). Otherwise, that portion of Section

475.17(1)(a), Florida Statutes, which authorizes an applicant to

overcome the presumption that he is not qualified for licensure

because of his prior conduct, would be meaningless. Id. ; State

ex rel. Corbett v . Churchwell , 215 So. 2d 302, 304 (Fla. 1968)

(refusing to conclude that a prior conviction “forever excludes”

the applicant from being licensed as a real estate salesman and

holding that the applicant is entitled to an evidentiary hearing

to “try to show rehabilitation or even mitigation”).

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Division issue a final order approving

Petitioner’s application for licensure as a real estate broker.

DONE A ND ENTERED this 22nd day of November , 2005, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 22nd day of November , 2005 .

ENDNOTES

1/ The reason that Petitioner was not regi stered at the time of

the incident is immaterial. Even if, as Petitioner contends,

his real estate sales associate license was not “active” at the

time of the incident because the broker for whom he was working

failed to file the necessary paperwork with the Commission , the

fact remains that Petitioner was operating as a real estate

sales associate without an “active” license to do so. That

said, the d ocuments in Petitioner’s application file corroborate

Petitioner’s testimony t hat he was employed by Vant age 2000

Commercial Realty operated by broker Frank Wigle at the time of

the incident. See , e.g. , Exhibit R1, at 000039 (Mr. Wigle’s

statement that he gave Petitioner “a letter of termination” on

December 11, 2001).

2/ Petitioner is bound by his admissi on of this fact as part of

the Stipulation. However, it is noteworthy that the material

elements of Petitioner’s explanation of the incident -- i.e. ,

that the that the seller wanted him to have the $500 payment for

his work on the failed transaction; that it was the seller’s

idea to make out the check out to cash so that the broker would

not get any of the money because the seller was upset that the

broker “screwed up the deal”; and that the $500 was returned to

the seller -- w ere corroborated by the prose cutor who drafted

the Administrative Complaint and the Stipulation. See Exhibit

P1, at 37 - 42 (comments of Mr. Harwood at the Commission’s

meeting on May 18, 2005 ).

3/ Except as otherwise indicated, a ll statutory referenc es are

to the 2005 version of the Florida Statutes. See Lavernia v.

Dept. of Business and Professional Reg. , 616 So. 2d 53, 54 (Fla.

1st DCA 1993); Bruner v. Board of Real Estate , 399 So. 2d 4, 5

(Fla. 5th DCA 1981).

COPIES FURNISHED :

Michael E. Murphy, Acting Director

Division of Re al Estate

Department of Business and Professional

Regulation

400 West Robinson Street, Suite 802 North

Orlando, Florida 32801

Nancy B. Hogan, Chairman

Department of Business and Professional

Regulation

Florida Real Estate Commission

400 West Robinson Street, Suite 801 North

Orlando, Florida 32801

Josefina Tamayo, General Counsel

Department of Business and Professional

Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Daniel Villazon, Esquire

Daniel Villazon, P.A.

419 West Vine Street

Kissimmee, Florida 34741

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writt en 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.