05-004510 Bradford Nutting vs. Florida Real Estate Commission Status: Closed Recommended Order on Tuesday, April 18, 2006.

Summary: Respondent`s denial of Petitioner`s application for a real estate broker`s license was proper because of Petitioner`s conviction for domestic violence, a crime involving moral turpitude, and his failure to prove rehabilitation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRADFORD NUTTING , )

)

Petitioner , )

)

vs. ) Case No. 05 - 4510

)

FLORIDA REAL ESTATE COMMISSION , )

)

Respondent . )

)

RECOMMENDED ORDER

An administrat ive hearing was conducted in this case on

March 3, 2006, in Cocoa, Florida, before Bram D.E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Daniel Villazon, Esquire

Daniel Villazon, P.A.

1020 Verona Street

Kissimmee, Florida 34741

For Respondent: Daniel R. Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

STATEMENT OF THE ISSUE

The issue in this case is whether the Florida Real Estate

Commission (Commission) lawfully denied the application of

Bradford Nutting (Petitioner) for licensure as a Florida re al

estate broker.

PRELIMINARY STATEMENT

On October 21, 2005, the Commission denied Petitioner's

application to obtain a real estate broker's license. The

denial was based on Petitioner's criminal record as revealed in

his license application, the lack of persuasiveness of

Petitioner's testimony in explanation or mitigation of his past

crimes, and the recent occurrence of the crimes. The Commission

concluded that there had not been a sufficient lapse of time to

establish Petitioner's rehabilitation. Petit ioner requested an

administrative hearing to contest the denial of his application ,

and the case was referred to DOAH to conduct an evidentiary

hearing.

At the hearing, Petitioner testified on his own behalf and

also presented the testimony of Timothy Alvi n, Steven Romano,

and Monique de Graw. Petitioner offered no exhibits into

evidence. The Commission called no witnesses. The Commission's

Exhibits 1 and 2 were admitted into evidence.

A court reporter recorded the hearing , but no transcript

was filed wi th DOAH. The parties submitted P roposed R ecommended

O rders that were considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. The Commission is the agency responsible for regulating

the practice of real estate sales in Florida.

2. So metime in 2003, Petitioner applied for licensure as a

real estate sales associate. In the application form for this

license, Petitioner disclosed that he had been convicted, found

guilty, or entered a plea of nolo contendere to three crimes:

driving under the influence (DUI) in 1990, possession of a

controlled substance in 1991, and another DUI in 2001.

3. The Commission issued Petitioner a license as a real

estate sales associate , and Petitioner currently works as a real

estate sales associate.

4. The C ommission has never taken disciplinary action

against Petitioner's current license.

5. In May 2005, Petitioner applied for licensure as a

Florida real estate broker. That is the application which is

the subject of this case. In his broker's license appl ication,

Petitioner disclosed that he was convicted of three counts of

domestic violence in November 2003 to which he pled nolo

contendere . For these crimes, Petitioner was ordered to serve

three years of probation.

6. In May 2005, shortly after he appl ied for his broker

license, Petitioner was convicted of one count of assault and

one count of domestic violence. For these most recent offenses,

Petitioner was sentenced to probation and ordered to attend a

26 - week batterer's intervention program . Petiti oner completed

the intervention program, but he is still on probation.

7. The matter of Petitioner's broker's license application

was heard by the Commission in a public hearing held on

August 16, 2005. With regard to the 2003 and 2005 convictions

for d omestic violence, Petitioner claimed to have pled to the

crimes to avoid more serious charges made by his ex - wife and the

possibility of going to prison. When asked whether his client

was claiming to be innocent of the charges made by his wife,

Petitioner 's attorney replied, "Well, I don't know if you're

totally innocent -- I've never seen someone totally innocent."

8. At the hearing before the Commission, Petitioner's

testimony regarding the circumstances of the domestic violence

incidents was evasive, amb iguous , and less than candid. One

Commissioner tried, without success, to get Petitioner to

explain the circumstances of the domestic violence convictions:

Commissioner: What exactly happened that

caused you to plea to those cases?

Petitioner: It start ed with an incident

. . . at my mother's condominium. And over

a period of over approximately a week, all

these various things happened. I basically

got --

Commissioner: What happened?

Petitioner: Well she kept claiming that --

well, she went out to a bar one night and

got beat up. She came to my place of

residence and asked me to help her.

* * *

She came back, you know, two or three days

lat er, started harassing me again.

* * *

I got in my automobile and tried to leave

the state and go back to Georgia, where I'm

originally from. She followed me there.

Ultimately, I ran to the point of having to

stop for gas . . . and had another incident.

Commissioner: What was the incident?

Petitioner: Well, she was on pain pills

again.

Com missioner: What did you do that caused

you to plead?

Petitioner: I'm not sure I understand the

question, sir.

* * *

Commissioner: But what happened to [make

you] plead to the assault? Did you ever

touch her?

Petitioner: I physically touche d her, which

is, you kn ow, a domestic violence charge.

9. Petitioner showed similar evasiveness and lack of

candor at the evidentiary hearing before the undersigned. Even

though he pled to three counts of domestic violence in 2003, he

claimed not to und erstand how he came to be charged with three

separate counts. That claim is not credible.

10. At the hearing, Petitioner repeated the evasive

response he had given the Commission on August 16, 2006, to the

effect that any touching amounts to an assault. His obvious

purpose in giving this response was to imply that he had merely

touched his wife during the incidents for which he was convicted

of domestic violence. That claim is also not credible.

11. Based on the more persuasive evidence in the record

a nd taking into consideration the demeanor of Petitioner, his

claim that he was not guilty of the crimes for which he was

convicted, but pled no contest simply to avoid the possibility

that his ex - wife's false charges would result in more serious

sentences, is not credible.

12. Every time Petitioner was asked a question about the

circumstances of his domestic violence offenses, his answers

omitted any description of his own actions and placed all blame

on his ex - wife.

13. Petitioner's evasiveness and lack of candor

demonstrate his failure to acknowledge and take responsibility

for his past actions. Petitioner's rehabilitation will not be

complete before that occurs.

14. The testimony by Petitioner's colleagues about his

character was not sufficient to est ablish that Petitioner has

been rehabilitated. Except (possibly) for Ms. de Graw, the

witnesses were unaware of the circumstances of Petitioner's past

convictions. Mr. Romano, who hired Petitioner in his current

position as a real estate sales associate and who is

Petitioner's supervisor, was unaware of the crimes for which

Petitioner had been convicted and was unaware that Petitioner

was on probation.

15. Petitioner did not express confidence that he was

rehabilitated.

16. Insufficient time has passed from Petitioner's

criminal offenses to support a finding that Petitioner is

rehabilitated.

CONCLUSIONS OF LAW

17 . DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Sections 120.569 and

120.57, Florida Statutes (20 05) . 1

18 . As the applicant for a license , Petitioner bears the

burden to prov e his entitlement to the license . Antel v. Dept.

of Professional Regulation, Florida Real E state Commission ,

522 So. 2d 1056 (Fla . 5th DCA 1988) ; Florida Department of

Transpor tation v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA

1981).

19 . Subsection 475.25(1) (f) , Florida Statutes, authorizes

the Commission to deny an application for licensure if the

applicant:

Has been convicted or found guilty of, or

entered a plea of nol o 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.

2 0 . M oral turpitude has been defined as involving " the

idea of inherent baseness or depravity in the private social

relations or duties owed by man to man or by man to society. "

State ex rel. Tullidge v. Hollingsworth , 108 Fla. 607 , 611 146

So. 660 , 661 ( 1933 ).

21. No court decision was c ited by the parties or is known

to the undersigned that involves the question of whether

domestic violence is a crime involving moral turpitude.

22 . Subsection 741.28(2), Florida Statutes, defines

domestic violence as "any assault, aggravated assault, ba ttery,

aggravated battery, sexual assault, sexual battery, stalking,

aggravated stalking, kidnapping, false imprisonment, or any

criminal offense resulting in physical injury or death of one

family or household member by another family or household

member . "

23. Petitioner argues that the courts have only found

crimes involving personal gain to be crimes of moral turpitude.

Yet, Petitioner cites the Antel case, supra , which held that

manslaughter was a crime of moral turpitude. It would be

illogical to vi ew crimes such as the sale of bogus diplomas

( State ex rel. Munch v. Davis , 143 Fla. 236, 196 So. 491 (Fla.

1940) ) or b ookmaking ( Carp v. Florida Real Estate Commission ,

211 So. 2d 240 (Fla. 3d DCA 1968) ) as crimes involving moral

turpitude, but not crimes of physical violence against another

person that result in injury or death.

24. It is the conclusion of the undersigned that domestic

violence is a crime involving moral turpitude.

2 5 . Subsection 475.17(1)(a), Florida Statutes, provides in

pertinent par t:

An applicant for licensure who is a natural

person must . . . be honest, truthful,

trustworthy, and of good character; and have

a good reputation for fair dealing . . .

must be competent and qualified to make real

estate transactions and conduct negotia tions

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 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

suffi cient, it appears to the commission

that the interest of the public and

investors will not likely be endangered by

the granting of registration.

26 . Petitioner failed to satisfy his burden of proof.

Because of his failure to acknowledge and take respons ibility

for his past crimes, Petitioner failed to rebut the presumption

in Subsection 475.17(1)(a), Florida Statutes, that he is not

qualified for licensure as a real estate broker .

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions

of Law, it is

RECOMMENDED that the Commission issue a final order denying

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

DONE AND ENTERED this 18th day of April , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 18th day of April , 2006 .

ENDNOTE

1/ All references to Florida Statutes are to Florida

Statutes (2005).

COPIES FURNISHED :

Daniel R. Biggins, Esquire

Department of Legal Affairs

The Capitol, Plaza Level 01

Tallahassee, Florida 32399 - 1050

Daniel Villazon, Esquire

Daniel Villazon, P.A.

1020 Verona Street

Kissimmee, Florida 34741

Nancy B. Hogan, Chairman

Real Estate Commission

Department of Business and

Professional Regulation

400 West Robinson Street, Suite 801N

Orlando, Florida 32801

Josefina Tamayo, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

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.