05-001111 Nancy C. Snodgrass vs. Department Of Business And Professional Regulation, Division Of Real Estate Status: Closed Recommended Order on Friday, September 30, 2005.

Summary: An insufficient lapse of time since Petitioner`s criminal activity requires the denial of the license application.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NANCY C. SNODGRASS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1111

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

DIVISION OF REAL ESTATE, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 27, 2005, an administrative hearing in this case was

held in Orlando, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

419 West Vine Street

Kissimmee, Florida 34741

For Respondent: Barbara Rockhill Edwards, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue in the case is whether the Petitioner's

application for licensure as a real estate sales associate

should be approved .

PRELIMINARY STATEMENT

By Notice of Denial dated December 1, 2004, the Florida

Real Estate Commission (Commission) denied the application of

Nancy C. Snodgrass (Petitioner) for licensure as a real estate

sales associate. The Notice referenced 24 various criminal

offenses committed by the Petitioner and cited S ubs ection

475.25 (1) (f), Florida Statutes ( 2004 ) , as authority for the

denial.

The Petitioner requested a formal hearing to challenge the

denial. The Department of Business and Professional Regula tion

(Respondent) forwarded the request for hearing to the Division

of Administrative Hearings, which scheduled and conducted the

proceeding.

At the hearing, the Petitioner presented the testimony of

three witnesses, testified on her own behalf, and had one

exhibit admitted into evidence. The Respondent presented the

testimony of the Petitioner, and had E xhibits numbered 1 and 2

admitted into evidence.

The one - volume Transcript of the hearing was filed on

August 3, 2005. Although the T ranscript indica tes that the

hearing was conducted by video teleconference, the hearing was

in fact conducted with all participants located in Orlando,

Florida. As agreed by the parties in a Motion for Extension of

Time filed on August 4, 2005, the Proposed Recommended O rders

were filed on August 31, 2005.

FINDINGS OF FACT

1. In August 2004, 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

Information" question No. 1 asked 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.

3. The question directed an applicant responding in the

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

completion of "form 0050 - 1." The Petitioner filed the

information related to her criminal history on the proper forms,

and disclosed 26 instances wherein legal charges had been

brought against her. The Petitioner also collected and

submitted available records related to her criminal history.

4. By Notice of Denial dated December 1, 2004, the

Commission denied the Petitioner's application and specifically

referenced the Petitioner's criminal history as follows:

1. Issuing Worthless Document, 05/86

2. Driving While License Suspended, 07/86

3. Attempted Fraudulent Use o f a Credit

Card, 08/86

4. Driving While License Suspended and

Improper Equipment, 09/86

affic Citation/No Driver 's License,

10/86

6. Uttering a Forgery, 02/88

7. Forgery, 04/88

8. Driving While License Suspended - amended

to No Valid License, 06/88

9. Worthless Check, 12/88

10. Driving While License Suspended,

03/21/89

11. Possession of Drug Paraphernalia,

03/25/89

12. Theft, 08/02/89

13. Possession of Cocaine, 08/25/89

14. Driving While License Suspended, 1990

15. Resisting Officer w/o Violence, 1991

16. Retail Theft, 1992

17. Obtaining Property w/ Worthless Check,

04/0993 [ sic ]

18. Driver's License Restriction, 05/02/93

19. Obtain Property w/ Worthless Check,

11/18/93

20. Uttering Forged Bill, 02/26/94

21. Theft, 04/08/94

22. Theft, 01/07/95

23. Retail Theft, 07/14/96

24. Petit Theft and Driving w/o License,

1997

5. The Petition er is currently 51 years old and has been

employed by the Ron Jon Caribe Resort for about seven years. In

her work, she deals with the public and handles funds. Her

employer is aware of her criminal history.

6. At the hearing, the Petitioner testified that prior to

the criminal charges, she was a cosmetologist. In the early

80's, she began religious counseling with a priest, went through

a divorce, and began to remember instances of abuse that

occurred during her childhood.

7. The Petitioner testif ied that the emotional turmoil

related to recalling her abusive childhood led initially to drug

use, and then to drug addiction. The Petitioner opined that her

criminal record was primarily the result of drug addiction.

8. Many of the Petitioner's thef t convictions were related

to obtaining funds for drugs. In fact , the 1997 charges were

related to a relapse into drug use that occurred after the

Petitioner had already completed a substance abuse program.

9. The Petitioner further testified that whil e

incarcerated in 1997, she underwent a spiritual conversion,

began to take renewed responsibility for her actions, and is

currently living a sober life. The evidence establishes that

since 1997, the Petitioner has made consistent progress towards

recover y.

10. At the hearing, several of the Petitioner's friends

and supporters testified on her behalf. They believe her to be

honest and trustworthy. A minister who worked with the

Petitioner during her incarceration testified that the

Petitioner had unde rgone a "complete transformation" during the

incarceration.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(1), Fla . Stat . (200 4 ).

12. As the party see king the license, the Petitioner has

the burden of proving entitlement to licensure by a

preponderance of the evidence. Dept. of Banking and Finance,

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

Co. , 670 So. 2d 932 (Fla. 1996). The heari ng 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 ( 2004 ) , in material

part provides as follows:

475.25 Discipline. --

(1) The commission may deny an application

for licensure, registration, or permit, or

renewal thereof; may place a licensee,

registrant, or permittee on probation; may

suspend a license, regi stration, 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 for each count or separate

offense; and may issue a reprimand, and any

or all of the foregoing, i f it finds that

the licensee, registrant, permittee, or

applicant:

* * *

(f) Has 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

activit ies of a licensed broker or sales

associate, or involves moral turpitude or

fraudulent or dishonest dealing. The record

of a conviction certified or authenticated

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.

14. Whether convictions constitute a violation of

Subsection 475.25(1)(f), Florida Statutes ( 2004 ) , depends on

whether the Respondent's actions demonstrate moral turpitude.

Moral turpitude involves the idea of in herent baseness or

depravity in the private social relations 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 int ent, as when

unintentionally committed through error of judgment when wrong

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

146 So. 660 ( Fla. 1933).

15. Theft is contrary to principle and one's duty to

society, and is an act of moral tur pitude. Although the

Petitioner appears to be making substantial and remarkable

progress towards establishing herself as a law - abiding,

responsible citizen, the fact remains that as recently as 1997,

the Petitioner was incarcerated for theft charges relat ed to a

relapse into drug use.

16. S ubs ection 475.17(1)(a), Florida Statutes ( 2004 ) ,

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, truth ful,

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

ther efor 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

practi ce 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 practi ces 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 a pplicant 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 appears to the commission

that the interest of the public an d

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. ( e mphasis

supplied)

17. The Petitioner asserts that the lapse of time and

subsequent good conduct of the Petitioner indicate that granting

the licensure sought in this case would not likely harm

investors and the public. In this case, the Petitioner's

criminal activity occ urred over an 11 - year period, spanned at

least one unsuccessful recovery, and occurred as recently as

1997. While the Petitioner's efforts toward recovery are to be

supported and encouraged, the evidence presented at the hearing

is insufficient to support granting the licensure sought at this

time.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Respondent enter a f inal o rder denying

the Petitioner's application for licensure as a real estate

sa les associate.

DONE AND ENTER ED this 30 th day of September , 2005 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee 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 30 th day of September , 2005 .

COPIES FURNISHED :

Barbara R ockhill 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

Leon Biegalski, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Nancy B. Hogan, Chairman

Florida Real Estate Commission

400 West Robinson Street, Suite 801N

Orlando, Florida 32801

NOTICE OF RIGHT TO S UBMIT 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.