05-001138 Richard Clyde Strockbine, Iii vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Wednesday, June 29, 2005.

Summary: The application for licensure was denied due to criminal history, insufficient passage of time, and lack of demonstrated subsequent good conduct.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD CLYDE STROCKBINE , III, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1138

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, t his cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on June 10, 2005 , by video

teleconference with sites in Lauderdale Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: D aniel Villazon , Esquire

Daniel Villazon, P.A.

419 West Vine Street

Kissimmee, Florida 34741

For Respondent: Barbara Rockhill Edwards , Esquire

Department of Lega l Affairs

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue presented is whether Petitioner's application for

lic ensure as a real estate sales associate should be granted.

PRELIMINARY STATEMENT

By Notice of Denial dated November 10, 2004, the Florida

Real Estate Commission advised Petitioner that his application

for licensure was denied, and Petitioner timely reques ted an

administrative hearing regarding that preliminary determination.

This cause was thereafter transferred to the Division of

Administrative Hearings to conduct the evidentiary proceeding.

Petitioner testified on his own behalf. Additionally,

Joint Ex hibit numbered 1 and Petitioner's Exhibit numbered 1

w ere admitted in evidence.

Both parties filed proposed recommended orders after the

conclusion of the evidentiary hearing. Those documents have

been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. On his application for licensure as a real estate sales

associate Petitioner answered in the affirmative to question

numbered 1 requesting background information. Question numbered

1 reads, in part, as follows:

Have you ever been co nvicted of a crime,

found guilty, or entered a plea of guilty or

nolo contendere (no contest) to, even if you

received a withhold of adjudication?

2. On January 30, 2000, Petitioner , who had just turned 19

years of age, was arrested for grand theft, loit ering and

prowling, resisting arrest without violence, and burglary of an

unoccupied structure. The affidavit forming the basis for the

charges indicates that a police officer saw Petitioner standing

next to a truck, that a window in the truck had been br oken and

the truck had been burglarized, that several item s of property

that had been removed from the truck were on the ground next to

the truck and Petitioner, that Petitioner ran away from the

police officer, and that he was apprehended after a pursuit on

foot.

3. Petitioner subsequently pled guilty, and adjudication

was withheld. He was sentenced to one year of community

control, which was followed by two years of probation, 80 hours

of community service, and restitution in the amount of $200 for

the truck window he broke .

4. On March 14 , 2000, Petitioner was arrested and charged

with criminal mischief over $1,000, a third - degree felony. He

was driving his motor vehicle around on a golf co urse . The

affidavit forming the basis of the charge states that the damage

was done willfully and maliciously. Petitioner pled guilty.

T he r ecord in thi s cause suggests that adjudication was withheld

but is not clear as to the sentence that was imposed.

5. On July 30, 2002, Petitioner violated his probation

with some type of traffic offense . His probation was extended

and additional community service hours were required of him.

6. Petitioner's probation was terminated on March 13,

2003.

7. By letter dated September 7, 200 4, the Department

directed Petitio ner to submit three letters of recommendation

and to appear at the October 20, 2004, meeting of the Florida

Real Estate Commission in support of his application. Although

Petitioner received that letter, h e failed to submit any letters

of recommendation a nd failed to appear at the Commission's

meeting.

8 . At the time of the final hearing in this cause

Petitioner was employed in pharmaceutical sales and was engaged

to be married.

CONCLUSIONS OF LAW

9 . The Division of Administrative Hearings has

jurisd iction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

10 . Section 475.25(1) , Florida Statu t es, authorizes the

Florida Real Estate Commission to deny an application for

licensure if it finds that the applicant 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

activities of a licensed broker or sales

associate, or involves moral turpitude or

f raudulent or dishonest dealing.

§ 475.25(1)(f) , Fla. Stat .

11. Section 475.17(1)(a), Florida Statutes, requires that

an applicant for licensure, inter alia , be ho nest, truthful,

trustworthy, of good character, and have a good reputation for

fair deali ng. That statute further provides that if an

applicant has been found guilty of conduct which would be

grounds for revoking or suspending his license, the applicant

shall be deemed not qualified for licensure ". . . unless,

because of lapse of time and su bsequent good conduct and

reputation, or other reason deemed sufficient, it appears . . .

that the interest of the public and investors will not likely be

endangered by the granting . . ." of a license. Petitioner's

guilty pleas would be grounds for suspe nding or revoking a

license if he had held one. See § 475.25(1)(f), Fla . Stat.

12. Petitioner has the burden of proving his entitlement

to licensure. Dept. of Banking & Finance, Division of

Securities & Investor Protection v. Osborne, Stern & Co. , 670

So. 2d 932 (Fla. 1996). Petitioner has failed to meet his

burden of proof.

13. Petitioner's excuse for the January 2000 criminal

charges against him is that he was having a hard time because

his parents had divorced and he had moved to Florida. He

test ified that he, therefore, abused alcohol which r esulted in

his criminal acts. Even ignoring Petitione r's underage use of

alcohol , his suggestion that his criminal acts are excusable for

t he reason given is without merit .

14. Further, Petitioner testi fied that he had broken into

the truck only to sleep because he was too drunk to drive the

two miles to his home; that testimony does not expl ain the items

which were taken from the truck. L ater in the final hearing he

also testified that he was so drunk that he had no recollection

as to why he broke into the truck. Similarly, he testified that

he had no family in Florida, and he later testified that he was

too drunk to drive to his father's house. Thus, Petitioner has

demonstrated a lack of truthfulness and honesty and, therefore,

a lack of good character by his conflicting testimony.

15 . As to the criminal mischief charge, Petitioner offered

no explanation as to why he drove willfully and maliciously

around on a golf course. He sim ply states that he made a dumb

decision. The willful destruction of another's real property is

more serious than simply being a mistake . Petitioner's failure

to explain why he intentionally damaged another's real property

leaves concern as to whether he might make a simil ar decision in

the future .

16 . Petitioner argues that he is entitled to licensure due

to the passage of time. Section 475.17(1)(a), Florida Statutes,

however, requires both the passage of time and subsequent good

conduct and reputation. Viewing both p rongs of the test leads

one to conclude that Petitioner has satisfied neither. First, a

little more than two years has passed since Petitioner's

probation was terminated. In other words, he has only been

unsupervised for that length of time. Second, the only "good

conduct" offered by Petitioner is that he has a job and pla ns to

be married. Neither endeavor is sufficient to prove subsequent

good conduct.

17. Moreover, Petitioner was given an opportunity to

submit letters of recommendation to the Flori da Real Estate

Commission as well as the opportunity to produce witnesses at

the final hearing who could have testified that Petitioner is

honest, truthful, trustworthy, of good character and possessing

a good reputation for fair dealing. Petitioner chose to take

advantage of n either opportunity and, instead, simply downplayed

his criminal history involving other people's property without

appearing to take responsibility for it. Petitioner has not

demonstrated that the granting of a license to him at this time

will not likely endanger the interest of the public or

investors.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered denying

Petitioner's application for licensure as a real estate sales

associate.

DONE AND ENTERED this 29th day of June , 200 5 , in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 29th day of June, 2005 .

COPIES FURNISHED:

Daniel Villazon , Esquire

Daniel Villazon, P .A.

419 West Vine Street

Kissimmee, Florida 34741

Barbara Rockhill Edwards , Esquire

Department of Legal Affairs

Office of the Attorney General

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

Juana Watkins, Acting Director

Division of Real Estate

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 802 , North

Orlando, F lorida 32801

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 with the agency that

will issue the Final Order in this case.